[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


                  CONGRESSIONAL CONTINUITY: ENSURING THE 
               FIRST BRANCH IS PREPARED IN TIMES OF CRISIS

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

                                HEARING

                                BEFORE THE

           SELECT COMMITTEE ON THE MODERNIZATION OF CONGRESS

                                 OF THE

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 6, 2022

                               __________

                           Serial No. 117-17

                               __________

  Printed for the use of the Select Committee on the Modernization of 
                                Congress

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                    Available via http://govinfo.gov
                    
                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
47-600                      WASHINGTON : 2022                     
          
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           SELECT COMMITTEE ON THE MODERNIZATION OF CONGRESS

                    DEREK KILMER, Washington, Chair

 ZOE LOFGREN, California              WILLIAM TIMMONS, South Carolina,
EMANUEL CLEAVER, Missouri              Vice Chair
ED PERLMUTTER, Colorado              BOB LATTA, Ohio
DEAN PHILLIPS, Minnesota             RODNEY DAVIS, Illinois
NIKEMA WILLIAMS, Georgia             DAVE JOYCE, Ohio
                                     GUY RESCHENTHALER, Pennsylvania
                                     BETH VAN DUYNE, Texas

                            COMMITTEE STAFF

                     Yuri Beckelman, Staff Director
                 Derek Harley, Republican Staff Director
                            
                            
                            C O N T E N T S

                              ----------                              

                           OPENING STATEMENTS

                                                                   Page

Chairman Derek Kilmer
    Oral Statement...............................................     1
Vice Chairman William Timmons
    Oral Statement...............................................     3

                               WITNESSES

George Rogers, Former General Counsel, Committee on Rules
    Oral Statement...............................................     4
    Written Statement............................................     7
Doug Lewis, Former Election Center Executive Director
    Oral Statement...............................................    26
    Written Statement............................................    28
The Honorable Arthur B. Culvahouse, Co-Chair, Continuity of 
  Government Commission, American Enterprise Institute
    Oral Statement...............................................    37
    Written Statement............................................    39
The Honorable Donna Shalala, Co-Chair, Continuity of Government 
  Commission, American Enterprise Institute
    Oral Statement...............................................    44
    Written Statement............................................    46
The Honorable Brian Baird, Continuity of Government Commission, 
  American Enterprise Institute
    Written Statement............................................    49
Discussion.......................................................    78

             APPENDIX I: ANSWERS TO POST-HEARING QUESTIONS

The Honorable Arthur B. Culvahouse, Co-Chair, Continuity of 
  Government Commission, American Enterprise Institute...........   112
George Rogers, Former General Counsel, Committee on Rules........   114
The Honorable Brian Baird, Continuity of Government Commission, 
  American Enterprise Institute..................................   120

            APPENDIX II: ADDITIONAL MATERIAL FOR THE RECORD

Additional Testimony by The Honorable Brian Baird, Continuity of 
  Government Commission, American Enterprise Institute...........   126
Additional Statement by George Rogers, Former General Counsel, 
  Committee on Rules.............................................   142

 
  CONGRESSIONAL CONTINUITY: ENSURING THE FIRST BRANCH IS PREPARED IN 
                            TIMES OF CRISIS

                        WEDNESDAY, APRIL 6, 2022

                  House of Representatives,
                            Select Committee on the
                                 Modernization of Congress,
                                                    Washington, DC.
    The committee met, pursuant to call, at 9:00 a.m., in Room 
1334, Longworth House Office Building, Hon. Derek Kilmer 
[chairman of the committee] presiding.
    Present: Representatives Kilmer, Cleaver, Perlmutter, 
Phillips, Williams, Timmons, Davis, Latta, and Van Duyne.
    Also Present: Representatives Scanlon and Loudermilk.

        OPENING STATEMENT OF HON. DEREK KILMER, CHAIRMAN

    The Chairman. Okay. The committee will come to order.
    Without objection, the chair is authorized to declare a 
recess of the committee at any time.
    And, without objection, I would also like to welcome our 
colleagues from the Committee on Rules and the Committee on 
House Administration to participate in this hearing.
    The topics we are focusing on today fall within their 
jurisdiction, so we wanted to make sure to include them in this 
discussion. Their participation in the hearing will be limited 
to the Q&A portion of the hearing.
    I now recognize myself for 5 minutes for an opening 
statement.
    One of the least surprising things we will hear today is 
that no one wants to imagine a future that doesn't involve 
them. It is why less than half of American adults have a will. 
And it makes total sense. There is a natural tendency to 
procrastinate when it comes to planning for anything that is 
remotely unpleasant, much less catastrophic. It is pretty easy 
for most people to ignore the consequences of doing nothing 
when the chances of disaster seem unlikely.
    But what about institutions, how do they assess risk and 
plan for worst-case scenarios? As it turns out, there are a lot 
of people--the institutions are a lot like people, meaning, 
they are all over the place. That is true whether we are 
talking about governments or businesses or schools or other 
organizations.
    State government continuity plans range from detailed to 
sparse, according to the National Conference of State 
Legislatures, and foreign legislators are just as inconsistent. 
Big companies are more likely to have business continuity plans 
in place compared to medium and small companies, but they vary 
a lot in terms of their depth and scope. And as we have seen 
over the past couple of years, continuity of education very 
much depends on the school and the district.
    The 9/11 attacks did spur a broad movement toward 
continuity planning, and our recent experience with COVID has 
reportedly had a similar effect. That is a good thing. The less 
time institutions devote to reacting, the more time they can 
spend doing what they are supposed to do.
    For Congress, that means working on behalf of the American 
people. The attacks on 9/11 made clear how vulnerable this 
institution is. The possibility of a Congress without a Capitol 
and without its Members is obviously something none of us want 
to contemplate. But as representatives of the people, we need 
to. Our essential responsibility is to make sure that the 
people's voice remains intact no matter the circumstances.
    Figuring out how to do that is no easy task, as the experts 
joining us today well know. Some were involved in the post-9/11 
debates around continuity of Congress and will share with us 
their firsthand perspectives on why this incredibly important 
issue is so tricky to address.
    Our most recent experience with COVID is a reminder that 
there is still much work to be done. Congress has learned a lot 
about continuity of operations in the past 2 years, just as it 
did on the heels of 9/11. And while we all want nothing more 
than to move on and put the pandemic behind us, Congress should 
take advantage of this unique moment. Because if we don't, 
Members will be sitting around 20 years from now, trying to 
make sense of what happened and why, just like a lot of us are 
doing today with regard to 9/11. That is a disservice to the 
American people.
    The bottom line is that if Congress can't function, our 
constituents lose their voice in government. That is a core 
principle of representational democracy that should be 
preserved. A Congress that can't function also opens the door 
to unilateral executive branch control which defies 
constitutional intent.
    So today is about restarting that conversation. The experts 
joining us will provide background and perspective on the 
measures Congress adopted after 9/11 to ensure continuity of 
representation. They will also discuss the current 
effectiveness of those measures and whether they think 
additional steps need to be taken or adjustments made. I am 
looking forward to a good discussion.
    The committee will once again make use of our committee 
rules that give us the flexibility to engage in extended 
discussion in the civil exchange of ideas and opinions. In 
accordance with clause 2(j) of House rule XI, we will allow up 
to 30 minutes of extended questioning per witness. And, without 
objection, time will not be strictly segregated between the 
witnesses which will allow for extended back-and-forth 
exchanges between members and the witnesses.
    Vice Chair Timmons and I will manage the time to ensure 
that every member has equal opportunity to participate. Any 
member who wishes to speak should just signal their request to 
me or Vice Chair Timmons.
    Additionally, members who wish to claim their individual 5 
minutes to question each witness pursuant to clause 2(j)(2) of 
rule XI will be permitted to do so following the period of 
extended questioning.
    Okay. I would like to now invite Vice Chair Timmons to 
share some opening remarks as well.

    OPENING STATEMENT OF HON. WILLIAM TIMMONS, VICE CHAIRMAN

    Mr. Timmons. Thank you, Mr. Chairman.
    First, I just want to say thank you all for coming today. 
This is a very, very complicated issue, and we are going to 
spend some time digging in on it.
    I am going to begin by just talking about this committee. 
We try to make Congress better. We try to modernize Congress. 
That is our mission, more effective, efficient, and transparent 
for the American people.
    We start with what is the problem, and then we try to 
figure out a way to solve the problem. Let's take staffing, for 
example. We have made a number of recommendations there. I 
think the biggest ones are decoupling Member pay to allow us to 
pay our senior staffers more and increasing the MRA to give 
Members more resources to compensate staff better, keep them 
here longer. A number of other recommendations.
    We have made a lot of progress, we can keep going, but that 
is the model. So let's start with, what is the problem? The 
problem is, after 9/11, we dug deep and tried to figure out 
what we would do in a worst-case scenario.
    The way I see it is there is two types of problems. One, 
there is policy issues. Does anybody think it is a good idea 
that if enough members in the majority party were to meet an 
untimely demise, that a motion to vacate the chair could switch 
the balance of power, have a new Speaker for 100 to 150 days? 
That is just a policy question. I don't think that is--that is 
not the way it should be, but that is the way it currently is. 
So we got to start with what is the problem. So that is the 
policy.
    Then we have procedural--potential procedural legal 
challenges to continuity of Congress. So worst-case scenario, 
designated survivor kind of situation. We have all seen the 
show. You have the designated survivor off, and he is getting 
sworn in as Acting President. You got 30 Members of Congress 
who are sitting here, saying, well, we are going to elect a 
Speaker. That new Speaker then is going to say, I am the 
President, and the designated survivor is going to say, Well, 
are you? Like, you had 30 Members of Congress elect you 
Speaker. That is not a quorum. So then they are going to say, 
well, let's go to the Supreme Court. Ooh, there is no Supreme 
Court. What do we do?
    So that is just a problem. And I am really looking forward 
to figure out whether we agree that is a problem, whether that 
is actually what would happen, or if we need to make 
recommendations to change it to address that.
    So I am looking forward to this hearing. I really 
appreciate you all being here.
    And, with that, Mr. Chairman, I yield back.
    The Chairman. Thank you, Vice Chair Timmons.
    I am honored to welcome four experts who are here to share 
with us their experiences, perspectives, and ideas for how to 
ensure congressional continuity in the event of a catastrophe 
or emergency. We also have a couple of others who aren't going 
to have opening remarks but are going to be available to also 
share their wisdom with us.
    Witnesses are reminded that your written statements will be 
made part of the record.
    Our first witness is George Rogers. Mr. Rogers spent 14 
years working for the U.S. House and U.S. Senate. He served as 
general counsel to the House Committee on Rules and as counsel 
at the House Oversight and Government Reform Committee. He 
began his public service career working for former Senate 
Foreign Relations Committee Chairman Richard Lugar.
    Mr. Rogers, thank you for being with us. You are now 
recognized for 5 minutes.

  STATEMENTS OF GEORGE ROGERS, FORMER GENERAL COUNSEL FOR THE 
 HOUSE RULES COMMITTEE; AND DOUG LEWIS, FORMER ELECTION CENTER 
                       EXECUTIVE DIRECTOR

                   STATEMENT OF GEORGE ROGERS

    Mr. Rogers. Thank you, Mr. Chairman.
    Chairman Kilmer, Vice Chair Timmons, and members of the 
committee, and my distinguished fellow panel members, it is an 
honor to appear before you here today.
    I was privileged, as you said, to serve as the general 
counsel for the Rules Committee right after the 9/11 terrorism. 
It was a time of self-examination when the words ``homeland 
security'' took on a whole new meaning.
    At the time, I was assigned three major projects to assist 
Members. First, to create the Committee on Homeland Security; 
second, to look at our rules and procedures for continuity; and 
third, to help enact the expedited uniform special elections 
bill.
    I would like to also point out how delighted I am to be 
working with such prestigious people on this panel, and I am 
referring specifically to the distinguished Madam Secretary 
Shalala. Even though we are probably on different sides of this 
issue, we both don't view it as partisan.
    And I would also like to note that the President of the 
United States gave her the Medal of Freedom, a well-deserved 
honor, and thank you.
    I will be brief as my written testimony contains details. 
The 9/11 attack focused the minds of House Members on 
continuity. Continuity in Representation Act and the 
provisional quorum rule work in tandem to ensure only elected 
Members of the House exercise power in the people's House. The 
members followed the father of the Constitution, James 
Madison's, view that where elections end, tyranny begins.
    First, they provided a mechanism for Members killed by 
terrorism or catastrophe to be replenished by uniform special 
elections. Uniformity is important, and I think today we will 
probably end up talking about the number of days and all those 
sort of things. But it needs to be uniform so you can avoid the 
Sturm und Drang of multiple elections occurring at multiple 
times, as Mr. Timmons mentioned, back-and-forth power shifts. 
That kind of turmoil is something the House needs to avoid. The 
people of America don't need to have that happen.
    Second, the principals decided to address what is called 
the quorum trap, what to do if a majority of Members are unable 
to act because of incapacitation. The problem is that if you 
are elected, sworn, living, and incapacitated, you are still 
part of the denominator for the quorum, and you can quickly 
figure out that there are problems there if you can't get a 
quorum.
    The rule creates a multistep process to allow action by 
those Members able to respond. In that sense, it is an 
objective way of going about the issue. The Cox-Frost task 
force and the committee that I worked for both looked at how to 
define incapacitation, but instead we came up with a rule. If 
Members can respond, that is how you define the quorum.
    The 103rd Congress also held a hearing and floor action on 
a constitutional amendment, which I am sure we will talk about 
today. The distinguished Americans on this panel have long 
believed in a constitutional amendment. We considered a 
constitutional amendment in the Congress. Two-thirds 
affirmative vote was required. Sixty-three Members voted for 
it.
    In contrast, the Continuity in Representation Act was 
considered over two Congresses. In the 108th Congress, it 
passed with 306 votes. In the 109th--excuse me--yes, in the 
109th Congress, it passed with 329 votes. Became Public Law 
109-55 and was codified into United States Code, Section 8.
    At no time in history of the Republic has the House been 
appointed--not in the Constitutional Convention when the issue 
was decided 9-2, not during the pandemic commonly known as the 
Spanish flu, not during wars that threaten the survival of our 
Nation, and not during a nuclear attack threat during the Cold 
War--to not have uniform special elections risks special 
elections called at different times for potential partisan 
gain.
    And then there is the matter of former Governor Blagojevich 
who tried to sell a Senate seat.
    On the provisional quorum rule, it utilizes constitutional 
rulemaking powers recognized by the Supreme Court. The rule 
focuses on the abilities of Members themselves to respond to 
multiple-day quorum calls as well as reports that include input 
from the Sergeant at Arms, the Clerk, the Attending Physician 
to Congress, public health officials, and law enforcement.
    I would note that the then-minority objected primarily to 
the lack of concurrence of the minority in effectuating the 
provisional quorum. There are very few, if any, powers of 
concurrence in the House rules.
    In closing, the Congress provided for a uniform expedited 
special elections and prevented the quorum trap. One question 
not answered is what to do if all the Members are killed or 
incapacitated.
    Rather than appointments, you could consider elected 
continuity officers for each State, who would then serve until 
uniform expedited special elections occur. I have some more 
thoughts on that if we get into it in the questions.
    Were a constitutional amendment done, it would take years 
for the people's House to have its provisions go into effect, 
and the people's House needs to be able to act immediately. So 
another question that is left unanswered is, what do we do 
while we are waiting for the constitutional amendment to go 
into effect?
    I welcome your questions. And, again, I thank the select 
committee for inviting me here and for this important inquiry. 
Thank you.
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    The Chairman. Thank you, Mr. Rogers.
    I saw Mr. Lewis on the screen, but I don't see him now. I 
don't know if he just has his camera off. Oh, I saw--ooh, there 
we go. Terrific.
    So I will now introduce our next witness, Doug Lewis, who 
is joining us virtually from Texas. Mr. Lewis is the former 
executive director of the National Association of Elected 
Officials, a national nonpartisan, nonprofit organization that 
represents the Nation's voter registration and elections 
officials and administrators at the city, township, county, and 
State levels.
    Mr. Lewis, thanks for being with us. You are now recognized 
for 5 minutes.

                    STATEMENT OF DOUG LEWIS

    Mr. Lewis. Thank you, sir.
    I want to first say that I am impressed with what you all 
are doing in terms of looking at these issues. You have done 
considerable work so far, and it looks to me like you are 
headed in the right direction of trying to find out what to do. 
I am very appreciative of the work you are doing.
    At the same time, I want to say to you that we looked at it 
from a standpoint of an election, how do we conduct an election 
in an emergency situation, what can we do to speed the process 
and to have the process have validity.
    And the first question that we have to ask in any of that 
is, what do we consider an election to be? If it is just an 
event, if all it is is that we are going to decide that there 
is a date certain we are going to have an event, and that event 
is a bunch of people show up and they vote on a piece of paper, 
and we get--we get some results from that.
    Or is it a process in the sense that we have come to expect 
in elections throughout the Nation's history that we will have 
a time to get to know the candidates, and we have a process by 
which candidates can get on the ballot, and that we then have a 
time in which we let a primary process work and determine who 
is going to win that primary? And from that, then we have a 
general election, and we learn something about the candidates 
and their positions and what have you.
    And so if we are talking about a democracy process, if we 
are talking about an election as a process that makes this 
happen all over, then we are talking about something that is a 
whole lot slower than just doing an event.
    And so the questions that have to come, whether we do a 49-
day dive--deadline or longer or shorter, the question really 
comes, do we have enough time for a primary process to work and 
for all the things that go on before a primary, including 
filing deadlines and whatever? Do we have--do we allow 
political parties to choose their candidates ahead of time so 
that we can then run an accelerated election? What about 
independent candidates at that point, and how would they choose 
their nominees? Are we prepared for a situation like in 
California when they ran that special governor recall? Are we 
prepared for 50 or 100 candidates to file for the office that 
is now open due to an emergency?
    There has to be some process in here that allows us time to 
do ballot preparation, to do notification, to do all the things 
that we have come to expect from what we expect an election to 
be. In the most extreme instance of this, with nothing going 
wrong, we can accomplish most of that within 7 to 10 days.
    There also has to be time for voters to find out who is 
officially on the ballot and where they go to vote on that 
ballot when that time comes.
    We have some emergency concerns and considerations. Is 
transportation available? Do we have electricity? Are there 
ways for us to distribute ballots and set up polling places and 
have people come in, or are we going to be forced to only hold 
it in the daylight hour? If we don't have electricity, how do 
we create ballots for you?
    Now, certainly we can run one without electricity. We can 
run one without even, maybe, gasoline. If we don't have 
electricity, we probably can't have gasoline. And so we can do 
that, but it means it is going to be entirely different than we 
have ever done before, at least in recent decades. And so the 
concept of how we do this and the question of whether or not we 
can do this depends upon the circumstances that are in front of 
us when we do this.
    And so staffing an election is going to be difficult in a 
national emergency situation. Now, we have learned from 
experience that if we are running--if we are running those 
specialized elections for vacancies that occur as a special 
election, we can run that pretty much with our staff and with 
the key volunteers that we have always relied upon. And so we 
can--we can make that work, but it means we also then probably 
are going to shrink enormously the numbers of polling places 
that we have gotten used to. We are going to have to look at a 
way that we can make all of that work for the voters and have 
locations that they can find, and then probably pay not a bit 
of attention to the traditional lines to do that. And so it is 
a complex situation.
    I want you to know that elections officials will do what 
they have to do to make this come off, but we really have to 
have you all decide what is the larger context of what is an 
election and how do we get there.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    The Chairman. Thank you, Mr. Lewis.
    Our next two witnesses are the co-chairs of the AEI 
Continuity of Government Commission. I am going to introduce 
them both and allow them to present their testimony together.
    Donna Shalala is the University of Miami Board of Trustees 
presidential chair and professor emerita in the university's 
Department of Health Management and Policy. From 2019 to 2021, 
she served as a Member of the U.S. House of Representatives, 
representing Florida's 27th District. Previously, Congresswoman 
Shalala served as the president of the Clinton Foundation and 
the University of Miami and as the 18th United States Secretary 
of Health and Human Services throughout the Clinton 
administration.
    A.B. Culvahouse most recently served as the United States 
Ambassador to Australia, from 2019 to January 2021. He 
previously served as the chair of the international law firm, 
O'Melveny & Myers, LLP--did I get it? Close enough for jazz--
and as White House Counsel during the last 2 years of the 
Reagan administration.
    Both President Donald Trump and the late Senator John 
McCain tapped Ambassador Culvahouse to vet their Vice 
Presidential candidates.
    I don't know if I call you Congresswoman, Secretary, 
President Shalala, Donna, and Ambassador Culvahouse, you are 
both recognized for 5 minutes, 10 minutes combined. Take it 
away.

STATEMENTS OF THE HONORABLE ARTHUR B. CULVAHOUSE, ON BEHALF OF 
 CONTINUITY OF GOVERNMENT COMMISSION; AND THE HONORABLE DONNA 
SHALALA, ON BEHALF OF CONTINUITY OF GOVERNMENT COMMISSION; THE 
 HONORABLE BRIAN BAIRD, ON BEHALF OF CONTINUITY OF GOVERNMENT 
    COMMISSION; AND THE HONORABLE MIKE BISHOP, ON BEHALF OF 
              CONTINUITY OF GOVERNMENT COMMISSION

        STATEMENT OF THE HONORABLE ARTHUR B. CULVAHOUSE

    Mr. Culvahouse. Mr. Chairman, Ranking Member Timmons, 
members of the committee, thank you for having us today. I will 
summarize my prepared statement. I am joined with--we are 
joined with two other members of our commission, Brian Baird, 
and I think Mike Bishop is online, who are former members of 
this body.
    I will quickly identify what the problem--or the principal 
problem, as we see it, and I think Secretary Shalala will talk 
about our recommended solutions.
    Mr. Chairman, members of the committee, I first visited the 
issue of continuity of government in 1987 as the brand-new 
White House counsel and received a very sobering briefing on 
what helicopter I was supposed to be on in the event of the 
proverbial bolt out of the blue.
    Since then, I have served on two different Nuclear Command 
and Control Department of the Defense Advisory Commissions, 
doing a deep dive, again, of the survivability of the executive 
branch governance and of our Nuclear Command and Control System 
in the event of catastrophic attack.
    As stated in my prepared statement, we have extensive and 
elaborate procedures, laws, and constitutional provisions to 
assure that we always have a President. Now, that President may 
not be the elected President or even the elected Vice 
President. But our enemies, foreign and domestic, can be 
assured that we will always have a President to exercise those 
responsibilities.
    Our commission and the commission before us, and many other 
experts have concluded that the same is not true of Congress, 
that under certain cataclysmic, catastrophic scenarios, you 
could resolve in not having a functioning House of 
Representatives. That by definition is a fault line and a 
fissure that requires attention.
    The Constitution is clear in Article I, Section 5 that a 
majority of each House shall constitute a quorum, if not a 
majority of Members then living. And in the case of the House 
of Representatives, as you know better than I, vacancies can 
only be filled by special election, the result being that it is 
abundantly clear in our mind--and we have spent a lot of time 
studying this--if more than 218 Members die or are 
incapacitated in a mass attack, the House could not convene, 
could not make laws, could not pass appropriations, could not 
override a veto, could not impeach a rogue President, which--
and could not confirm a Vice President or otherwise check and 
balance the executives in a situation of great peril. And that 
is the problem that we respectfully suggest most requires the 
attention of this committee.
    My prepared statement identifies three other issues of, I 
guess, lesser gravity, we would say, one of which is that it 
would be helpful and beneficial and wise for the authority of 
the House in clear situations to meet virtually and remotely. I 
don't--we are not purporting to get involved in the debate of 
the day, but we can probably all envision of scenarios where 
meeting remotely or virtually and voting remotely would be 
wise.
    Third, the third issue relates to the requirement on 
January 3 that Congress assemble, elect a Speaker, adopt rules, 
and then on Presidential election years, on January 6, elect to 
count electoral ballots. There are no provisions for 
alternative ways to accomplish those important tasks in the 
event of catastrophic events and people cannot assemble as 
required.
    And then fourth, the Constitution does not provide for 
replacement of severely incapacitated House or Senate Members, 
and you can see, again, in a catastrophic scenario where you 
would have living Members but who could not assemble and--for 
quorum purposes. And, again, you would have the potential for a 
House that cannot--does not have a quorum and, therefore, 
cannot function.
    Mr. Chairman, members of the committee, in all four of 
these scenarios, and most especially the first, relating to the 
lack of a constitutional quorum by mass casualties, they 
threaten the continuity of Congress as a functioning 
representative of the American people, and our commission 
respectfully suggests that they need to be addressed.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

            STATEMENT OF THE HONORABLE DONNA SHALALA

    Ms. Shalala. Thank you very much. Thank you, Mr. Chairman. 
Thank you, Mr. Rogers.
    Chairman Kilmer, Vice Chairman Timmons, let me address the 
exact recommendations. First, the problem that Congress cannot 
meet. The Commission, we actually didn't comment on the actions 
taken during the recent pandemic, but we noted that there could 
be some disaster in the future where everyone would agree it is 
impossible to meet in person for an extended period of time.
    To ensure that Congress could function during this crisis, 
we recommend a constitutional amendment that would give 
Congress the power by law to provide for the scenario, 
including the possibility of remote participation. However, 
this constitutional amendment would provide protections to 
ensure that remote floor proceedings would require the in-
person or virtual presence of at least one-half of each body to 
meet the quorum requirement, and that Members would be provided 
notice and be guaranteed access to whatever mode of meeting 
that is envisioned in law.
    We also make a recommendation to address the problem of 
incapacitated Members. In the extreme case, when the numbers of 
deceased and incapacitated Members exceed a majority of either 
Chamber, temporary replacements will replace the incapacitated 
Member. But any Member deemed incapacitated shall immediately 
be reinstated if they declare that they are able.
    We make a recommendation for the start of Congress. The 
House and the Senate shall each have the power to provide for 
the commencement of business at the start of a new Congress, 
and that power would include provision for each Chamber to 
remotely swear in new Members and commence the business of a 
new Congress.
    And then we make a recommendation for a change to House 
rules. We recommend that the repeal of parts of a House rule 
that currently exists. In 2005, House rule XX, clause 5, was 
amended to include emergency procedures under which the quorum 
of the House may be reduced potentially to a very small number 
if only a few Members of Congress remain alive and are able 
after a catastrophic attack.
    The rule's stated aim was to allow the House to operate 
under almost any circumstance. We believe that this rule is 
both unconstitutional and unwise.
    Finally, on the method of selecting temporary replacements, 
we recommended that temporary replacements be drawn from a list 
provided by each sitting Member. Using this method, the 
temporary replacements would most resemble the representatives 
who lost their lives in the catastrophe and would not shift the 
balance of power in Congress.
    That is a summary of our recommendations. We obviously have 
more. I sat on the original commission, and I think it is 
important for all of you to consider these recommendations, but 
more importantly, to consider what happens and how the problem 
of mass vacancies ought to be managed. And it is a decision 
that ought to be made quickly, because the possibility is 
certainly in front of us.
    When I was a young assistant secretary at HUD in the Carter 
administration, I was the designee to manage the Department in 
case of a catastrophe. And I remember flying in the middle of 
the night in a rainstorm to a bunker to manage the Department 
of HUD. It was actually terrifying, and we weren't very well 
organized.
    These kind of catastrophes, as we now know, are now very 
much in the future, and in the near future, we simply have to 
make these decisions.
    Thank you very much.
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    The Chairman. Thank you, Congresswoman Shalala and 
Ambassador Culvahouse.
    Before we move to a period of extended questioning, I also 
want to just welcome two additional members of the AEI 
Continuity of Government Commission who are joining us today, 
two former members. Brian Baird, who represented Washington's 
Third District in the U.S. House from 1999 to 2011; and Mike 
Bishop, who is with us virtually, who represented Michigan's 
Eighth District in the U.S. House from 2015 to 2019.
    Congressman Baird and Congressman Bishop will be joining 
the Q&A portion of the hearing, so let's kick that off.
    I now recognize myself and Vice Chair Timmons to begin a 
period of extended questioning of the witnesses.
    Any member who wishes to speak should just signal their 
request to either me or Vice Chair Timmons. You can raise a 
hand, or if you are joining us virtually, you just raise your 
virtual hand, and we will be sure to call on you. And if 
someone mentions something that you want to pull on that 
thread, just give us the hi sign, and we are happy to jump in.
    I want to start with our two guests that didn't get a 
chance to chat. I have a thousand questions, but let me start 
with you all, and I am going to ask you to keep it reasonably 
brief. But I am just curious why you got involved in this 
effort.
    Mr. Bishop, if you want to start, I thought your story of 
how you jumped into this was very compelling, and if you can 
briefly just share with us how you got involved in this effort.
    Mr. Bishop. Certainly. Thank you, Mr. Chairman and Ranking 
Member Timmons, members of the committee. It is an honor for me 
to be here today. I am grateful for your time on this matter.
    Well, I am a late addition to this commission, to answer 
your question, and having had a personal experience while 
serving in Congress, that really piqued my awareness and 
certainly my sense of responsibility to be a part of an 
immediate solution, which I think is to address an imminent 
threat to our democracy.
    I was on the baseball field with my Republican teammates 
and colleagues back in 2016 when a lone assassin opened fire on 
us with a semiautomatic rifle. As you know, the shooter 
seriously wounded our good friend, Steve Scalise, and several 
others, and but for the heroic acts to defend us, there is no 
question in my mind that the assailant very well could have 
taken out all of us.
    At the time, it was a--you know, for us, it was a personal 
matter. It was a matter of life and death. But it didn't take 
long to soon realize that this had far greater implications 
than just a human catastrophe. And in retrospect, I can't 
believe it took this event to make me realize, to make us 
realize the implications of what a planned attack on Members 
could mean to the institution of democracy.
    But there is no question that we are all vulnerable, and 
this is just one illustration of the very grim realization that 
today we face a substantial number of ridiculously imminent 
threats to democracy. And a catastrophic event is just around 
the corner every day, and it can subvert the constitutional 
powers of Congress.
    We live in a very dangerous world, and it is more and more 
every day. The growing threats of foreign adversaries, 
terrorism, extremism, both foreign and domestic, and as you 
mentioned earlier, natural disasters are now--you know, we 
understand the implications of--the dramatic implications of a 
global pandemic.
    Now more than ever, the threats exist that pose a threat to 
our country, and it is conceivable--it is at a time, which 
scares me the most, at a time of our greatest time of crisis, 
without a legitimate democratic government and no ability 
whatsoever to respond to a real existential crisis or threat.
    And we are--we are all on notice. We have a real problem on 
our hands, and we can't afford to ignore it any longer. And it 
is not--it is not difficult to conceive of a single event, 
planned or otherwise, that would instantly render democracy 
powerless. And we have dodged a bullet in the past, so to 
speak, but who knows when our luck will run out.
    So to answer your question, in summary, Mr. Chairman, the 
reason why I got involved in this commission is because I feel 
compelled to be a part of the solution of an imminent threat to 
our democracy and really the future of our country and every 
American citizen.
    I really wish I was in Congress right now because I would--
I would really want to do whatever I could to exercise every 
power I had in my office, leverage every resource of my office 
to take up this matter with a sense of urgency.
    So thank you very much for allowing me to be here today. I 
am happy to answer any questions you might have. And I am 
grateful for your attention to this matter and for being a part 
of what you are doing today.
    The Chairman. Congressman Baird, do you want to just 
briefly share your----
    Mr. Baird. Thank you, Mr. Chairman, Mr. Vice Chair, members 
of the committee. It is good to see my good friend, Mike 
Bishop, here. And thank you, Mike, for your thoughts, and 
thanks to the other panelists today for theirs.
    You asked how I became involved with this. On September 
11th, when we saw the second tower get hit, I had a window on 
the seventh floor of Longworth House Office Building. We 
overlooked the Pentagon and national airport. And I asked my 
staff to come into the room. I said, look, if they hit D.C.--or 
if they hit New York, they are probably going to hit D.C. I 
would do it if I were them. And I said, we can see--we can see 
the airport. We will be the first people to see what might 
happen, and it is our obligation to warn people if it does. And 
we planned what would happen if we saw something.
    I went back to my office. Less than 5 minutes later, the 
event happened. We saw the fireball emerge from the Pentagon, 
and we executed a plan in which the male members of my staff 
ran floor to floor to floor telling everybody, you got to get 
out of this building, another plane could be coming easily, 
because we just saw something.
    But as I ran through the building, in a surreal moment, I 
said, what happens if they kill us? What happens to this 
institution? What are we going to do? So my first order of 
business, get my staff out of the building, get other people's 
staff out of the building. Got home, took some preparatory 
measures.
    And then all night I spent the time trying to read the 
Constitution, read the House rules, et cetera. And I have been 
doing this for 20 years now--for 20 years--trying to say, we 
are not prepared. And we still aren't.
    And let me just bring it to this moment today. It is 
appropriate that we are here today on April 6, and the reason 
that is appropriate is one of the central issues at stake here 
is what constitutes a quorum.
    It happens that April 6 was when the first Senate and House 
convened. They tried to convene on March 4. They tried to 
convene on March 5. They couldn't do it, and they couldn't do 
it because they lacked the quorum.
    They didn't say, we are going to lower the provisional 
Member of the House to chosen, sworn, living, and present. They 
said, we don't have half the people here, we can't meet 
legitimately. And they waited till April 6, the same day we are 
here today. So when we talk about losing the legitimacy of a 
quorum, it is a real deal.
    On top of that, there is this question of, must we always 
have procedures in place now that we have had forever, and will 
those continue to work? The short answer is that this 
commission and the prior commission studied this in great 
detail. And by the way, both commissions did not start--neither 
commission started and said, what we really must do is amend 
the Constitution. They all said, as Vice Chair Timmons pointed 
out, what is the problem stated.
    And Vice Chairman Timmons, you hit the nail on the head, as 
did the chairman. We have not only got the issue is the quorum 
valid, but we have got an issue of legitimacy.
    If the balance of power changes, and as Mr. Bishop pointed 
out, by a significant number that you now have a different 
majority than the people elected through either happenstance, a 
train wreck, as the Republican Conference experienced on their 
way to their retreat a while back, a plane wreck, as Mr. Kilmer 
knows, oftentimes that westbound flight has the entire 
Washington delegation on it.
    One of the issues of legitimacy in a representative 
government is do you have a representative? Is someone there to 
uphold your interest? And if your delegation has been 
eliminated, the legitimacy of representative government is 
lost.
    So when we--I will summarize and close with this. When we 
first started this, it was all about catastrophic losses. More 
recent events have convinced me that we have to look at the 
legitimacy of the institution. And if your State has no 
Senators or no Representatives at a time of national crisis, 
you are not part of that representative government. We need to 
fix that.
    This commission has recommended, as did the prior 
commission, a mechanism that is elegant, efficient, would 
obviate concerns about the quorum, would obviate the concerns 
that Mr. Lewis pointed out earlier about how fast can we hold 
an election, would make sure that every person in every 
district in every State has representation.
    And last but not least is this vision: Imagine a scenario, 
a horrible scenario, in which the Capitol gets hit during the 
State of the Union or the inauguration. We have lost the 
President and Vice President. We know the scenario. We have 
lost the House and the Senate and, by the way, the Supreme 
Court. What do we do?
    The provisions this commission has recommended would allow 
this body, the House and the Senate--if the Senate takes 
comparable action at some point--to reconvene 24 hours after 
the most abusive and destructive strike in the history of the 
country. Twenty--four hours later, the Congress of the United 
States, Article I, is back and functioning with credible people 
chosen by the last person elected to represent the people. And 
they get back to business.
    It is a powerful message to our people and to our 
adversaries and to the free world, which would look to us at 
that time of chaos and say, my God, what happens now? We have 
an answer if we enact the proposal recommended by this 
committee.
    Thanks for letting me speak.
    The Chairman. Thanks very much.
    I am going to put a hold on my other 999 questions and kick 
it to Vice Chair Timmons.
    Mr. Timmons. Thank you, Mr. Chairman.
    So, again, what are the problems? We got policy problems 
and we got legal problems. The policy problems are, do we think 
it is appropriate if a certain number of members of the 
majority were to meet an untimely demise, that there is a 
motion to vacate the chair, and balance of power shifts for 100 
to 150 days? That is just a policy problem. The world is going 
to go on.
    The next is if, worst-case scenario, State of the Union 
attack, 30 Members of the House elect a Speaker. That Speaker 
becomes Acting President. That is a policy problem. There is a 
legal problem surrounding it, but that is a policy problem. We 
probably don't think that is a good idea.
    But the legal challenge is this: If the Speaker that is 
elected by 30 Members of Congress tries to become Acting 
President, and the designated survivor of the opposing party 
says uh-uh, and then they say that you don't have a quorum, or 
you have the impeachment question, and the Acting President--
the designated survivor says there is no quorum. So that is a 
legal question which would create a crisis in government if 
this quorum issue isn't settled.
    So I guess the question is, for true continuity of 
Congress, continuity of government--and I am going to ask Mr. 
Rogers this--if on April 26, when we come back, we have a 
quorum call, and keep in mind there is only 433 Members 
currently serving in Congress--two passed away--and 217 Members 
of Congress, press the present button, is that a quorum?
    Mr. Rogers. No [inaudible].
    Mr. Timmons. Okay. So 217 out of the 433, which is less 
than half of 435, would constitute a quorum because two Members 
have passed away, and we are going off 433?
    Mr. Rogers. Well, if the Speaker [inaudible].
    Mr. Timmons. Okay. Mr. Culvahouse, what do you think about 
that question?
    Mr. Culvahouse. No.
    Mr. Timmons. Secretary Shalala?
    Mr. Baird? Congressman Baird? No? Okay.
    Mr. Baird. No.
    Mr. Timmons. So can we get an answer? How do we answer this 
question absent the constitutional amendment which will take 
forever? Is there a way to answer this question? Because really 
that is the question. If we can get an answer to that question, 
everything else is just a policy issue. It is not a continuity 
of Congress issue.
    So is there any way that we could get an answer, I guess 
from the Supreme Court, as to whether 217 Members of a 433-
Member body constitutes a quorum?
    Yes, Congressman Baird.
    Mr. Baird. Mr. Chairman, I respect the line of questioning. 
I think it is important. The current rule takes it to a much 
different level than what you are asserting. And as you said 
earlier, the current rule would allow three Members or two 
Members, that is the rule of the House.
    It is impossible to imagine that the Framers of the 
Constitution intended that a House rule could allow three 
Members out of 435 to declare themselves a Congress, elect one 
of the Members as Speaker, and then deem that Speaker the 
President of the United States under the----
    Mr. Timmons. But, Congressman, we literally could do this 
on April 26.
    Mr. Baird. What is that?
    Mr. Timmons. We could--217 people could vote President 
and--I mean, that could happen. And is there any way that we 
would then be able to get an answer to this question?
    Mr. Baird. You could--you could----
    Mr. Timmons. Mr. Rogers?
    Mr. Rogers. If I understood your hypothetical, two Members 
have passed away?
    Mr. Timmons. Two Members have passed away, so there is 433 
Members. 217 is less--was less than half of 435, so it is half.
    Mr. Rogers. Clause 6 of rule XX, when those two Members 
passed away, the Speaker takes cognition of that, the whole 
number of the House drops from 435 to 433. You have 217 Members 
who----
    Mr. Timmons. Sure. Could you make an opposite argument to 
that? If you were advising the designated survivor in the 
worst--case scenario, and the incoming Speaker of the House was 
in the opposing party, and you really thought it was--I mean, 
you could make the opposing argument, I would imagine.
    Mr. Rogers. [Inaudible.]
    Mr. Timmons. And you would if you were advising the 
designated survivor against the incoming Speaker.
    Anyways, so I just want to throw out the idea of, if there 
is a way we can get this question answered, where the four of 
you agree--go ahead. Yes, sir?
    Mr. Rogers. [Inaudible] you go on down a list. Actually it 
is something the committee would look at. I believe the 
Secretary of the Committee on Homeland Security, who obviously 
has visibility into things when we are in a time of crisis, is 
below, I believe, the Secretary of Agriculture. You know----
    Mr. Timmons. Sure.
    Mr. Rogers. [Inaudible] so the answer right now would be a 
question of law that the elected Speaker ----
    The Chairman. Sorry. Can you make sure your mike is on? 
Sorry.
    Mr. Rogers. My apologies. I am a rookie at testifying. So 
I----
    Mr. Timmons. But, again, the designated survivor would be 
the Acting President until the rump Congress, the 30 Members 
create a new Speaker. That Speaker would, under the 25th 
Amendment, go in above them, and then you have chaos.
    Anyways, I think we get the quorum question, and if we can 
get an answer to that question somehow, it will resolve the 
legal issues, not the policy issues.
    Last question really quick. Mr. Rogers, could the House 
adopt a rule limiting the ability for a motion to vacate the 
chair for a limited time under limited circumstances?
    Mr. Rogers. Well, we used to say at the Rules Committee 
that if you have a majority, you can do just about anything.
    Mr. Timmons. But could the majority--but could the majority 
limit the minority's ability under--if the majority no longer 
has a majority because people passed away, could the majority 
limit for 150 days the minority's ability to do a motion to 
vacate the chair through the House rules?
    Mr. Rogers. Well, you would have to pass the rule. So you 
would have to have a majority of those Members present to vote 
for it.
    The question of electing the Speaker is in the 
Constitution. So the question would be, are you violating the 
Constitution in some way by postponing the vacate? But the 
Constitution is--must elect a Speaker. It doesn't talk about 
vacate. So I think under your hypothetical, it is possible you 
could do that.
    Mr. Timmons. Thank you, Mr. Chairman. Sorry for taking so 
long.
    The Chairman. All right. I have got Mr. Latta, then Mr. 
Loudermilk, then Mr. Phillips, then Mr. Perlmutter.
    Mr. Perlmutter. I have just a comment on this----
    The Chairman. Go ahead.
    Mr. Perlmutter [continuing]. Conversation. Because I think 
I want to help Mr. Rogers here. The way it would work--and this 
sort of ties Mr. Baird and Mr. Rogers together. The way it 
works is, so, for instance, I was in the chair. I said, based 
on the deaths, and we have got three other people out, that the 
number of the whole House is 430. This is what I said Friday, 
okay? And so then that is the base number. But then what 
happens--and so that--you work off of that number, except now 
we have had the catastrophe, and the catastrophe changes that 
number because everybody's gone or a certain number are gone.
    So it isn't like--so then you go to the rule that we have 
in place as to how do you deal with a catastrophe. So it isn't, 
the 217 isn't legal or not legal or constitutional. It is what 
happens once the crisis hits, changes the number from what the 
whole House number was, 430, now it is 30.
    Mr. Timmons. But the three of them disagree with whether 
217 Members constitute a quorum on April--look--200----
    Mr. Perlmutter. I am with Mr. Rogers on this one.
    Mr. Timmons. Okay. But I am just saying, I mean, yeah, I 
get--that is the problem, people disagree.
    Mr. Latta. Well, thanks very much. And I want to thank our 
witnesses for being here.
    And of all of the committee hearings that we have been 
having on the Modernization of Congress, I think this is the 
most serious, because, again, it really goes to the fabric of 
our Constitution and of this House. And so I think when we have 
these discussions today, it is really important to take in a 
lot of things into consideration, especially what our Founders 
wanted and how that Constitution has lasted for this many 
years.
    And, Mr. Rogers, I know in your written statement, you 
know, you go back to the Constitution Convention 1787, and I am 
a historian by training, and it is what I read all the time. 
And I think that, you know, a couple of the quotes that you 
have in here, especially with Madison--and, again, Madison was 
one of the most prepared persons that ever went to probably the 
Constitutional Convention. Where elections end, tyranny begins.
    And you also quote Mason. The people will be represented. 
They ought, therefore, to choose their representatives.
    I think, you know, again, they went through, in a 4--month 
period of time, for those that stuck it out in Rhode Island, 
that never even showed up, that they went back and forth to 
give us what we have today. And I think that, you know, the 
Founders really gave us something that we have to make sure we 
preserve.
    But I think--you know, I would like to get your thoughts on 
a couple of things to start with, Mr. Rogers, because, again, 
when you talk about, you know, the War of 1812, on August 20, 
1814, when Admiral Cockburn stood upon the Speaker's chair of 
the House of Representatives and said, Shall this harbor of 
Yankee democracy be burned? He led his troops all said aye, and 
they set fire to the Capitol.
    But, you know, it was right after that, then, did our 
Congress, you know, just end up not coming back to Washington? 
No, they went to the Blodgett Hotel and met.
    And not long after that, in 1815 to 1819 when they built 
the old brick Capitol, you know, we met. It wasn't that they 
said, we were going to, you know, have to have a different 
forum.
    And then, you know, you also go in--and I am just going to 
talk for a couple of seconds more, but, you know, when you look 
at the Civil War, when you had the southern States leave the 
Union, and then in 1864, in July, when General Early and the 
Confederate troops attacked Washington, and Abraham Lincoln 
went out and actually saw the attack, you know, we didn't see, 
you know, Washington flee.
    But I would just like to get your thoughts on, you know, 
what our Founders were looking at at that time.
    Mr. Rogers. Well, thank you, Mr. Latta. Yeah, my written 
testimony goes into it more. I thought it was very interesting, 
you had a Federalist, the father of the Constitution, Mr. 
Madison, and an anti-Federalist, who--Mr. Mason, and they 
agreed, elections. Got to have elections.
    And it was thoroughly debated. There were--it came up 
several times in the Committee of the Whole, and then it came 
up for the final vote, which I mentioned went 9-2 with one 
State divided.
    So about 16 percent of those voting at the time--or States 
voting at the time wanted to have appointments, and 75 percent 
wanted to keep elections.
    I think we are in a, you know, an inflection point in our 
history with all of the--the current pandemic, the violence, 
all of the other things that are going on. But we have to also 
look back to the time in which the Founders and each successive 
group of Members sitting in this great House, they faced some 
pretty existential threats too.
    I am 53. I remember having to shelter under my desk for 
allegedly what would be good for a nuclear war attack, which I 
don't think would have helped at all. But in each time that the 
Congress has faced challenges, they have enshrined the 
elections. And the people I worked for at the time--Mr. Dreier, 
Mr. Sensenbrenner, and the House leadership--they wanted to 
make sure that we had elections. These are mechanisms.
    Constitutional amendment, it has some interesting points to 
it, but it would take time. What would we do in the interim? I 
think the average time of adopting a constitutional amendment 
is a fair number of years. So you are still going to have to 
come up with something to do even if you were to adopt the 
constitutional amendment.
    But the Founders didn't want appointments, and they 
certainly--you know, at no point did Madison talk about the 
politically connected picking their successors. In fact, he 
talked about, he wanted, you know, the wise and the foolish, he 
wanted the discerning and the undiscerning--the full quote is 
in my written testimony--because the House has to represent the 
people.
    The great compromise was the Senate is going to represent 
the States, and the House has to represent the national will, 
and the way you get there is elections.
    Thank you.
    Mr. Latta. Let me ask, Mr. Lewis, if you could have your 
mike on there. You know, you go through in your testimony 
really looking at--on the vacancies and also talking really 
about how you would be fulfilled and at the local level. But, 
you know, you go through from transportation, to cars running, 
electricity, to ballot stock being available, you know, how--
you know, do we even have a mail service.
    And, you know, some points that, you know, if you are 
thinking about what could happen out there, not just for the 
people that have to put on the elections locally, but also what 
could happen here--let's just say something would happen that, 
well, you know, Washington's obliterated.
    Again, where would Congress meet? Do we have to have 
another place in the country that we would meet? Again, what 
about telecommunications? You know, I am the ranker on Energy 
and Commerce's Telecommunications Subcommittee, and we can't 
even get our own--you know, when we have virtual hearings a lot 
of times, we can't get our mikes to work. And so the question 
is, you know, would people be fairly represented there?
    What if roads, what if bridges, what if all the bridges 
that would cross the Mississippi to Missouri, and Mike up in 
Michigan, you know, what happens if the bridge is destroyed, 
that you can't get from the upper to the lower part of 
Michigan?
    That, you know, if we have a situation that air travel is 
stopped, if we had an electromagnetic pulse that would prevent 
things.
    But, you know, Mr. Lewis, you know, in your testimony, you 
know, you talk about all these things. Could you conduct--could 
you conduct an election in a situation like that, to try to 
then say, this is how we are going to get people in? And how 
would you also have fairness if one part of the country could 
actually do an election but the other part couldn't?
    Mr. Lewis. Well, of course, your last question is one that 
is a policy question that I think you guys as policymakers are 
going to have to answer.
    But from our standpoint, are you asking if we can conduct 
an election? Well, one, I guess that presupposes that society 
is in such a condition that some of it works, some parts of it 
work, even if all of it doesn't work.
    We can adapt to pretty much anything that is thrown at us, 
I think. We may not be able to do it on the timetable that some 
folks have asked, because elections officials are going to be 
just like the general public. If there is no way for us to get 
around, if there is no way for us to have communications, it is 
going to be very tough for us to do the job.
    Now, having said that, remember that America, during the 
time of the Founders, as you all are talking about, was a very 
rural society and very far apart, and people would travel for 
days by horse or mule to get in to the local polling place and, 
in many instances, vote by hand.
    If we got to that point, we can duplicate that, we can 
replicate that. Hopefully, that is not the situation. But I 
think in our case, as elections administrators, what we have to 
plan on is the worst possible scenario and then work up from 
that as to how we do anything else.
    And so the answer is, even if we don't have electricity, we 
can probably still have an election. But it will be very 
different from the kind that we have had before, and 
participation by wide segments of the populous are going to be 
more difficult.
    Mr. Latta. All right. I thank you very much for your 
answer.
    Mr. Chairman, just indulge me for one last----
    This is from the National Journal from March the 17th, the 
first paragraph: Ukrainian lawmakers still showing up to vote. 
As fighting intensified around the suburbs of Ukraine's capital 
of Kyiv, entire neighborhoods reduced to rubble, over 300 of 
the country's parliamentarians gathered in the city to vote.
    I yield back.
    The Chairman. I want to give Mr. Baird a chance to swing at 
that first question, but first can I--Mr. Lewis, I couldn't 
tell from your written testimony how fast you could actually 
do--like barring the electromagnetic pulse and the roads all 
caving in and all of that, if everything is fine, how fast 
can--you know, in your testimony it referenced 75 days. The law 
says, I think, 49 days. What--if everything is hunky-dory, you 
still have to get nominees, you still have to print ballots, 
you still have to make sure military voters get their ballots.
    Can you ballpark a number with all of the caveats set 
aside?
    Mr. Lewis. Realistically, what I think we have said before 
and what we have said consistently, the closer you get us to 60 
days or more----
    The Chairman. 60 days.
    Mr. Lewis [continuing]. You then have an election that 
looks like an election and what most people in America would 
interpret as an election because you have got enough time to 
talk about it and find out how to get your candidates and that 
sort of thing.
    At the same time, even that--for instance, let me take just 
one little piece, ballot stock. Ballot stock is very 
specialized. It is not just plain paper. It is something we 
number so that we can account for all of it. On a short-note 
basis, we are unlikely to be able to produce enough ballot 
stock. So what we would have to do is do a workaround and do 
plain paper, but that is so difficult to then prove that it 
wasn't manipulated. You just sort of have to accept some things 
as you go through this.
    The Chairman. Gotcha. Thank you.
    Mr. Baird, do you want to quickly just reference? And then 
I am going to call on Mr. Phillips because I know he has got to 
go to another committee, and then I will go back to Mr. 
Loudermilk.
    Thank you for your flexibility.
    Mr. Baird. Thanks, Mr. Chairman.
    A couple of things. One, I have submitted extensive written 
testimony, and I would encourage the committee to review that. 
Also I'll be responding to Mr. Lewis's testimony.
    But I want to address something--I am sorry he is not here, 
but Mr. Latta raised. The quote actually--first of all, we all 
agree that under normal circumstances elections are the way to 
choose your Representative. We all agree to that. But if you 
can't have an election because it is unsafe to do so, or 
because it takes too long, it is also important to still have 
representation as important decisions are made.
    So the question is not either elections or no elections. 
Nobody on this committee is saying do away with elections. We 
are saying have a replacement temporarily until such time as 
elections can be held, as, Mr. Lewis points out.
    With regard to the Madison quote, history is important. The 
quote as cited is not correct. The actual quote was not when 
elections end, tyranny begins. It was when annual elections 
begin.
    Madison--we don't know if it was Madison or Hamilton. At 
least Wikipedia says it was Madison. The Library of Congress 
says it could be Madison or Hamilton. But here is the point: 
Madison was arguing in that phrase about should we have annual 
elections, biennial elections, et cetera. And he actually said, 
Isn't it interesting how Proverbs-like when annual elections 
end, tyranny begins could get used out of context, which they 
are in this case.
    Now, a couple of other quick points. Look, it is not fair 
to say, or accurate to say that the Framers only accepted 
elections, direct elections as valid means of representation. 
The United States Senate, for 125 years, was not directly 
elected. The Framers accepted that. Beyond that, the 17th 
Amendment which vested the power to choose Senators in the 
hands of the people still allowed non-direct replacement via 
Governors, which I think is unwise and we ought to change. But 
there are plenty of precedents in our own history, including 
the existence of the Senate itself.
    One other thing, Mr. Timmons is from South Carolina. Your 
State actually has enacted a very similar provision to that 
which the Commission is recommending. The National Council of 
State Legislatures has reviewed extensively succession 
provisions in the State legislatures, and you will find that a 
number of actually fairly conservative States have language 
almost identical to what we have got; that upon the election of 
a Representative in the State, the Representative shall choose 
a list of successors. In the event of significant losses, from 
that list the replacements will be made.
    That exists in South Carolina as a matter of fact. So if we 
are saying that only elections are valid for representation or 
you have tyranny, then the United States Senate is a tyrannical 
organization--sometimes we feel that way, I know--and we are 
also saying the State legislatures are tyrannical. It is just 
not a fair and valid comparison.
    The Chairman. Go ahead, Mr. Phillips, and then I have got 
you, Mr. Loudermilk.
    Mr. Phillips. Thank you, Mr. Chairman.
    This hearing is a great reminder that we overindulge in 
retrospect in this institution and not nearly enough in 
prospect, and I am grateful for this.
    You know, in my estimation, continuity requires both 
people, place, and process, and we are appropriately focusing 
on people, but particularly Members. But I do want to call 
attention to the fact that this place would not operate without 
extraordinary staff and house officers, parliamentarians, et 
cetera.
    Also process, you know, let's say we did proceed with 
selective replacements based on current Members. I know how 
hard it is in my second term to understand how this place 
operates. I cannot imagine being a new delegate going to a 
place where you are completely unaware of process or 
parliamentary procedure.
    And also place, you know, where would we retreat to? Would 
it be military base perhaps?
    So I would just ask that maybe we spend a few moments--I 
would like to hear all of your thoughts on this subject. How 
micro should we get? How detailed should a plan be relative 
particularly to process, explanation of rules, how a Congress 
would communicate if it is no longer in Washington, assuming 
Washington is non-inhabitable, for example, and also, again, 
the support teams that make this place operate.
    Maybe, Mr. Baird, if you want to start.
    Mr. Baird. Thank you.
    You are exactly right. In my own testimony, written 
testimony, we have to find a way to have continuity of staff.
    I would also just quickly say part of the advantage of 
Member-designated replacements is you will get a lot of people 
in that replacement position who have already served in 
Congress. In my case I would select former Congressman Don 
Bonker. He was two predecessors away, same party, centrist 
Democrat, knows the district inside and out, super smart. You 
would have me, I am dead. Sorry. But you have somebody just as 
good as me and who understands the institution. Not everybody 
would be chosen that way. But you would have a critical mass. 
And if you pair that with some continuity of staff and, as you 
said, with procedures allowing for remote meeting if the 
circumstances demanded, you can reconstitute this body in 24 
hours.
    Mr. Culvahouse. I agree. It needs to be micro, and if you 
look at the--as I indicated, I served on two Department of 
Defense Nuclear Command and Control Advisory Committees, and I 
also served on the President's Foreign Intelligence Advisory 
Board.
    On the executive side, the planning is elaborate. It is 
micro. It is very detailed. As I--when I met previously 
informally with the chairman and the ranking member, I 
indicated--and it's really all I can say--I can say I served as 
an exercise president once, and I was very impressed on the 
executive side at the level of detail. When you turn to the 
rest of the government, not so much, not so much.
    And I do think, in addition to fixing this quorum problem, 
which I firmly believe and every lawyer that serves on our 
committee agrees that is a serious problem, I would encourage 
you to consider extensive planning. I mean, we worried about 
the bolt on the blue. When I was in the Reagan White House, I 
was in the second helicopter. I don't think I would have made 
it probably, but all we cared was that the President got out 
and the Vice President. But I do think we need to have a 
resilient government. That is a matter of deterrence. It is a 
matter of deterrence, and we have Mr. Putin not disclaiming 
nuclear weapons, and so we are back to where we were in 1987, I 
am afraid to say, and work needs to be done.
    Ms. Shalala. I agree with my colleagues. The problem that 
we are having trouble with is how do you get replacements, 
because the election people tell us it will take too long to 
set up an election. That is a technology problem. That is an 
investment problem. And States have solved this problem. Oregon 
does it by sending out ballots. I mean, there are ways of 
dealing with the technology problem with investments.
    None of us believe that we should have anything other than 
elected Representatives, and that anything we do should be 
temporary to pull the government together, but we also don't 
want to change the mix that the people elected. We don't want 
to shift from one party to another just because a certain party 
lost more Members.
    So overlying all of this was our desire to keep the 
political mix, which made it more complicated, obviously. But 
we really believe in elected Representatives. Temporary 
replacements, it seems to me, we can deal with, and we can 
certainly deal with the technology and the difficulty of a 
quicker election with more representation.
    Mr. Phillips. I wholeheartedly agree.
    You know, my concern is, even with great people, without a 
knowledge of process, any institutional memory, place, any of 
that--without that predetermined and somewhat prepared for, I 
am afraid even the best mechanism by which we replace people 
still might not be satisfactory.
    Ms. Shalala. Well, most of the--I mean, Brian identified 
who he would have replaced.
    Mr. Phillips. Yeah.
    Ms. Shalala. Most of us would have replaced someone with 
legislative experience of some kind or another. I mean, I don't 
think it took me that long to figure out the process.
    Mr. Phillips. And that is part of my question, is should we 
have maybe some standards by which these, you know, successor--
--
    Ms. Shalala. We certainly could do some orientation. We 
certainly could do some quick orientation.
    Mr. Phillips. And maybe pre-orientation, you know, 
prospective orientation.
    Ms. Shalala. Yes, there is no question about that. But 
those are all the details.
    And, finally, I want to comment on the organization of the 
government. The agencies have detailed plans that they 
exercise. They go through exercises all the time.
    Mr. Rogers. Thank you for the question.
    When I was at the Rules Committee and we were dealing with 
the continuity, we participated in annuity exercises. We went 
to a remote location. We had procedures. The rules, the 
precedents, and everything were backed up on very hard and 
mirrored sites that are located far away from Washington, D.C.
    So I think perhaps the Select Committee could do some 
inquiry and see where those things are at now. That was 17 
years ago when we did those sort of exercises and processes.
    I certainly agree the need for staff--of course, the 
original Congress didn't really have staff. I think they had a 
clerk. And as a staffer, I understand that role and agree with 
it.
    A couple of other quick points. You know, it might be that 
the immediate area of this building or the Capitol is damaged, 
destroyed, whatever. But they did put as a consequence of the 
Cox-Frost Task Force the ability of the Speaker to convene in 
another place within the seat of government. The seat of 
government is kind of an interesting term they chose. I don't 
know, Walter Reed Hospital might be seat of government, or 
someplace else. And certainly, I think Mr. Latta mentioned that 
they moved to the hotel when they had to during 1812. But I 
think you could be pretty generous about where you moved the 
seat of government to. Of course it involves transportation 
issues and other things, but----
    Ms. Shalala. Go back to Philadelphia.
    Mr. Rogers. Go back to Philadelphia.
    A couple of other points. One, you could have a situation 
with a lot of Members incapacitated but able to vote, They just 
couldn't come and do it on the floor. So the committee might 
want to look at something like the Sergeant at Arms being sent 
out to canvass the vote, you know, some sort of certification. 
Let's say, God forbid, that a bunch of people are in Walter 
Reed because of some horrible event, but they are still--you 
know, incapacitation doesn't necessarily mean coma. I think 
that is what they thought of in 2004 or 2005, but you could 
have something like that, so some sort of canvassing by an 
official agent of the House.
    And then the last point is I have put together some 
thoughts about what happens if all of the Members are killed or 
all are incapacitated, and it kind of draws on the 
constitutional amendment idea but without changing the elected 
nature of the House.
    What it would be, if I can just briefly mention it, is, so, 
the House chooses its officers. You elect the Clerk. The Clerk 
presides over the House until the new Members are sworn in and 
the rules are adopted. The Speaker, as everyone knows, doesn't 
have to be a Member of Congress but has the ability to vote.
    So drawing kind of on those two principles, an idea that a 
person some of you may know, long service to the House, Billy 
Pitts, he was staff director of the Rules Committee, he was a 
minority officer of the House, and several other things for Bob 
Michel. He and I kicked around some ideas, and the idea in 
brief would be that the States could elect two continuity 
officers each. They don't come to Washington--I mean, they come 
to Washington for orientation and training and all the things 
you correctly point out, but they stay out in the States. They 
are the continuity officers that are duly elected by the 
people. Each Congress, the Congress could decide, because it 
has the power of deciding who actually gets seated, so you 
could also have a vote on opening day: This slate of people 
created by all the States are our continuity officers. Two 
could be from different parties, same party, but allow each 
State to decide. And then what you have there is officers who 
could come and could act in the stead of Members, could vote, 
could do other things.
    I still--I mean, I immensely respect the work of the 
Commission and the people here. I still have a really hard time 
with the idea that--and I have a hard time based on what I have 
read of the Constitution and the Federal Conventions and 
whatnot, the idea that you are elected to the House and take 
the oath and, therefore, you are a Member, and then you have 
somehow sort of a property interest that you could convey to 
someone else, which is sort of the idea of I have in my back 
pocket my successor.
    Some people talk about a durable power of attorney or some 
other mechanisms, but that to me is not how our Nation was 
founded. That sounds a lot more like aristocracy.
    But thank you.
    Mr. Phillips. Thank you, sir.
    I yield back now. Thank you.
    The Chairman. Mr. Loudermilk.
    Mr. Loudermilk. Thank you, Mr. Chair, Mr. Ranking Member, 
for allowing non committee members to participate in this. This 
is very intriguing and something I would like to follow this 
process even further.
    But as a member of House Administration, we are invited to 
come in and listen because this is somewhat dealing with 
elections. And this isn't the direction of the questions I was 
going to give, but something Mr. Phillips brought up prompted a 
question.
    Especially when it comes to a temporary solution, I look at 
the idea of having a designee, designated-successor type thing. 
I can also see several problems with that, that that becomes a 
political tool for the next election when you decide to leave 
that this is: I was already selected by so and so. Therefore, I 
have got an endorsement. I could also see a situation where 
that puts additional stress on a Member because there will be 
campaigns to become that designated person, right?
    But I have got one fundamental question, because I am 
intrigued, that as I try to do quite often, this committee is 
going back and looking at the original intent of the 
Constitution. And I think, inevitably, if we come up with a 
solution, it has to be consistent with that original intent or 
this whole thing gets caught up in questions in--you know, 
throughout the future with Supreme Court and everyone else.
    So real quick question. Mr. Rogers, maybe you are the one 
to answer this. The Constitution clearly says that the House of 
Representatives shall be composed of Members chosen every 
second year by the people of the several States. So that is 
election.
    Would a temporary replacement constitutionally even have 
the authority to act as a Member of Congress under the 
Constitution because they were not selected by the people of 
the State?
    Mr. Rogers. That is an excellent question, Mr. Loudermilk.
    And, again, not to keep going back to this idea, but the 
idea of continuity officers that we came up with in preparation 
of the hearing is they would be elected in the States, so they 
would have some imprimatur of the election.
    Mr. Loudermilk. Okay. And someone else have a--oh, yeah.
    Mr. Culvahouse. Congressman, I mean, the answer is no, but 
we are proposing a constitutional amendment.
    Mr. Loudermilk. Okay.
    Mr. Culvahouse. So the constitutional amendment would 
empower that successor, just like the temporary appointments on 
the Senate side.
    Mr. Loudermilk. Yeah.
    Mr. Culvahouse. Now, the one point that I think is 
important to make is the Framers obviously created the House 
with only elected Representatives, did not empower for 
temporary appointments. And Brian eloquently--but the one thing 
that the Framers were very clear about and the one reason that 
I think every lawyer who has looked at this comes down on the 
side of it is the majority of the whole House is the quorum, it 
is the Framers disliked intentionally the idea that a rump 
group of the House, a handful would purport to be the House of 
Representatives. And that is partly because there was a lot of 
jealousy and distrust amongst the early States. Rhode Island 
and Maine was afraid that the larger States would act 
inappropriately--or act not in their interest, I guess, is a 
better way to say it.
    But, you know, I remember my first job out of law school, I 
was working for Howard Baker on the Senate staff, and there 
were a number of old lions of the Senate--and they were old 
lions--who were distrust--you know, who still didn't like the 
fact that Gerald Ford was going to be confirmed to be Vice 
President because that was inconsistent with the Framers. But 
it was--you know, we are fortunate that that happened.
    And I think here the most--the least Representatives, the 
least Representatives' scenario that you can envision is that 
you have 30 House Members after a nuclear attack, or a weapons 
attack that purports to act as the House.
    Mr. Baird. Congressman, you raise a really interesting 
point, and it is a difficult challenge. Clearly, the Framers 
wanted there to be direct elections in the House, but they also 
wanted there to be representation in the House. If you have no 
representative at all--what we are left with is kind of a 
paradoxical situation, we are saying having no representative 
at all is somehow better representation than having a 
representative chosen on your behalf temporarily by the last 
person you elected, which is what we propose.
    Mr. Loudermilk. Right.
    Mr. Baird. There is a debate about, discussion that has 
been said a lot, Well, you can't pass a constitutional 
amendment rapid. Actually, you can. There is nothing in the 
Constitution that says you can't. It is in the best interest of 
the States to ratify quickly if this body will act. Why? 
Because then every State is assured that even in catastrophic 
circumstances, they will have temporary replacement and have a 
voice in that Congress in the Article I branch until they can 
have direct elections. So we could do it quickly, we could 
ratify quickly, and you would have representation.
    Mr. Loudermilk. One of the things that I heard discussed--
this--I love the thinking outside the box. And we talked about 
that there were originally appointments made to the Senate by 
the State legislatures. The design of the Senate and the House 
were specifically different during the time. The State 
legislatures represented the interests of the State, and the 
House, the people. So it kind of eliminates that in my mind.
    The other thing is the only way that I see constitutionally 
you could do this is--what you are talking about is electing a 
vice Congressman is really kind of where you are going with it, 
right, sort of like the Vice President, somebody to accede to 
it.
    Politically I can see a lot of issues with that. A lot of 
Members may decide to have a family member. I mean, you think 
of the districts out there and how polarized we are right now, 
and I would double my security, you know, if there was somebody 
who could immediately accede to that position.
    But one of the things I am looking at is I don't believe 
there is a silver-bullet solution to most issues, and I think 
this is one that a multiple approach is one to look at. And as 
I am looking at it is, what is--what can we do to reduce the 
time that you do something temporary? If you can significantly 
reduce that time, then to convene a House of Representatives 
that is duly elected.
    Georgia, the State of Georgia, has actually addressed this 
in code. In its current code in Georgia, basically it says if 
there is a vacancy of more than 100 in the Federal House of 
Representatives, then the Governor has to issue a special 
election to occur within 49 days.
    So they have actually addressed this, said, look--they want 
to make sure that, you know, we have representation for the 
State of Georgia, and that is triggered at 100, and it is only 
for special election if a Georgian member of the House has 
deceased as part of that or is incapacitated.
    So if there is a way that we could get 50 States to enact a 
similar type--you know, a bill and to make it law of the State, 
then that would significantly reduce the potential time that we 
have temporary.
    Yes, sir.
    Mr. Rogers. Mr. Loudermilk, the Continuity and 
Representation Act that was passed in 2004 and 2005 is Federal 
law and requires exactly what Georgia did, a special election 
in 49 days if 100 or more Members are killed.
    With due respect to the States and their power, it is 
probably a very good idea for each State to enact their own 
State law because of their power on elections. But there is a 
Federal law that requires that.
    Mr. Loudermilk. Okay. And that is good to know. I do agree 
with you it should be done in every State because then that 
prompts the State to be prepared, you know, in that event. And 
so----
    Yes, sir.
    Mr. Baird. Two very quick points. One, this Commission and 
prior commissions have addressed that very question of the 
politicization of their appointments. The better strategy, from 
a security and political perspective, is keep it quiet, keep it 
secret so that there is not some currying of favor. If people 
like me, they don't like A.B., but he would be my designated 
successor, I don't want that baggage.
    Mr. Loudermilk. Right.
    Mr. Baird. And I don't want A.B. to be a target as well.
    The second issue is, though--first of all, there is a real 
question of could we have meaningful elections in 49 days. 
Since that bill was passed, there have been very few special 
elections conducted in that time frame. But the second point 
is, a lot gets done in 49 days. After September 11th, this body 
convened. I was there. We did--we modified FISA. We authorized 
the use of force in Afghanistan and elsewhere. We did a lot of 
stuff in 49 days.
    So when you most need the Congress, you wouldn't have a 
Congress for a time that is just a crucial period.
    Mr. Loudermilk. Right. And I agree that as--when we do go 
back and compare the founding of our Nation, they weren't under 
the same timeline that we are now. You know, if there was going 
to be an attack, you had weeks to prepare for the ships to sale 
across the Atlantic, right? We are talking from months to 
minutes now. And so I understand the need to do this.
    And so, like I said, it is a very intriguing conversation 
that we have to have. And so thank you, Mr. Chairman.
    The Chairman. Thanks.
    I have got Mr. Perlmutter and then Mr. Davis.
    Mr. Perlmutter. This is a really important topic and one 
that has all sorts of paths that he we could follow. But I am 
with Mr. Baird and the Commission. I just don't think we can 
have any lapse of time. Okay. In that instance then we have got 
to have something that covers us in that 49-day period and then 
have the elections and then, you know, move forward. But in 
that momentary lapse, we have got problems, especially if it 
has been an attack, especially if it has been, you know, 
where--with things going on.
    So I agree with Mr. Rogers on, you know, the quorum piece 
of this thing, but I don't agree with him--I mean, I think the 
Constitution is flexible enough for us to be able to do a 
number of things. I am very concerned--I agree with you, too, 
on how long it will take to do a constitutional amendment. We 
have got to manage this in the time--I mean, right now.
    So--and I think rules change, but it says--so Article I, 
Section 5, 5.1: Each House shall be the judge of the election 
returns and qualifications of its own Members and a majority of 
each shall constitute a quorum to do business.
    So there it sort of comes back to your question about what 
is a quorum, but I think we--you get then to the next section, 
5.2: Each House may determine the rules of its proceedings. So 
where I think we have failed--or not failed, but I think we 
have taken a policy that I don't think fulfills all that we 
want is when we say, you know, let's look at the number of 
people who--and Ms. Van Duyne wants to make a distinction--I 
think she is right--between incapacitated and dead, so we have 
got to think about that.
    But I think we need to allow--so let's say there is 435 of 
us, and 435 is not a sacred number. We have had different 
numbers of the whole House since the beginning. Initially, each 
of us represented about 30,000 people. Now we represent about 
800,000 people, so that number is not sacred.
    But if we start at 435 and let's say 400 people are killed, 
now we have 30. What's the policy? Do we just let the executive 
go forward, do its thing? Is Congress going to be able to 
function, not function?
    Mr. Rogers.
    Mr. Rogers. Well, thank you, sir.
    I do take a little exception with one of the other 
witnesses here who said no constitutional scholars had found 
for the provisional quorum rule. Walter Dellinger who argued 
Raines v. Byrd, which is a case of constitutional standing 
about the line-item veto and did many other cases, he testified 
that the quorum rule would work under the Constitution. And the 
point of view of the then Parliamentarian, Charlie Johnson, and 
the Members I worked for and Mr. Dellinger was to have some 
elected Members, even if it is a small number, is better than 
any.
    Mr. Perlmutter. I am actually agreeing with you. I just 
don't think it goes far enough. It doesn't fulfill the policy 
concerns that I am worried about.
    So I think that the House had the right to change its 
rules. I think the Supreme Court has to respect that, but I 
don't think it really covers--it then lends us to these 
problems of, okay, the majority just switches, you know, who is 
the Speaker, all that kind of stuff. And I don't think it is 
helpful when you get down into that nitty-gritty piece of this 
thing.
    Now, God forbid any of this stuff happened to us. Okay. But 
I think--so I am not disagreeing specifically with the rule, 
but I don't think the policy that ultimately comes from it is 
what I want to see. I want us to be able to cover the losses as 
quickly as possible in a way that does the least disruption to 
the makeup of the House, and then provide for the elections, 
which you are absolutely right, that would then take place 50 
or 100 days, or some appropriate amount of time thereafter.
    And maybe we make sure that whoever is the designated 
survivor of the Member--and this may be in your--in the 
amendment that you all are proposing--can't run for election, 
you know, and just cut that out, just deal with it, you know, 
for that momentary period.
    So I just think there is enough flexibility for us to do a 
rule, and you did one. It didn't go as far as I would like to 
see it go.
    Mr. Rogers. If I could just comment on that. I totally 
agree with you. I think that the House Rules Committee and the 
folks on this Select Committee and others should look at all of 
those rules and continuity procedures. We did what we could in 
the time, but then, of course, other issues came along and 
there has been some work over time. But, yeah, it is a very 
important issue, sir.
    Mr. Perlmutter. The last thing I would say, because I went 
with the everybody--is--killed scenario, there is the question 
of incapacitated comes up and the definition of incapacitated. 
Is it a coma? Is it--I don't know what it is. That one still 
has me a little bit troubled.
    Mr. Baird, do you have a thought on that?
    Mr. Baird. Well, the incapacity issue has been wrestled 
with, as you know, but it is not--I am a neuropsychologist by 
trade. I have dealt with a lot of capacity----
    Mr. Perlmutter. I can't--I am not sure if your mic is----
    Mr. Baird. The light seems to be on.
    Mr. Perlmutter. Maybe it is just yours is a voice I can't 
hear.
    Mr. Baird. I will bring it a little closer. Thank you. Is 
that better?
    Mr. Perlmutter. There you go.
    Mr. Baird. Thank you.
    The incapacity issue is not unique, and people have 
wrestled with incapacity for a long time. The easiest and most 
eloquent solution is simply if you say you have got capacity, 
you have got capacity. Okay. So, in other words, somebody is 
not going to say, I never liked Baird anyway. He's crazy, which 
is a given. But they can't remove my ability to represent my 
constituents that way.
    So if you can declare you have capacity, you should be 
acknowledged that. But if you can't declare that, then there 
should be a process with medical professionals and legal 
professionals to decide it. But as soon as you then can declare 
it, you get it back if you are ruled without capacity.
    Mr. Perlmutter. The last thing I am going to say is for Mr. 
Bishop, because we were on the field at Gallaudet when you guys 
were under that attack, and we didn't have any police. We were 
all huddled in the dugout, you know, wondering what the heck 
was going on. And so, the very same things that you were--you 
know, you guys were under an attack. We weren't, but we were 
wondering if one was coming for us.
    And so, you know, we have all--and then, obviously, we have 
January 6. So, you know, this isn't just hypothetical anymore.
    Mr. Baird. Mr. Perlmutter, if I could address that real 
quickly, I'll be very brief on this.
    One of the things we have not addressed, but I think is 
real important to recognize, in our loyalty to elections, which 
we all believe are important, essential, we create a condition 
in which without elections, people can alter the makeup of the 
House and Senate, and that may well be an incentive to do so.
    The reality is had 20 Members of the Republican conference 
been killed that day when Mike and his colleagues narrowly 
escaped that fate, the balance of power in the House of 
Representatives would have changed.
    In the United States Senate with an evenly divided--a dead-
even divided majority, or minority in the Senate, one 
assassination, non-electoral process, can change the balance of 
power in the Senate, and that affects the Supreme Court for a 
lifetime.
    So if we don't find some mechanism to disincentivize non-
electoral interventions which could be by foreign terrorists or 
domestic, we create an incentive for mayhem, and we undermine 
the very principle of elections which we are saying is so 
sacrosanct, because through non-elective means, I could change 
the balance of power in the House and Senate, and that is 
dangerous.
    The Chairman. I think Mr. Lewis wanted to chime in 
virtually, and then I have got Mr. Davis.
    Mr. Lewis. As I see this, look, you guys are the 
policymakers on this, and we are sort of on the end of we will 
deal with whatever policy you create. But from the discussion 
that I am hearing here, it seems to me we need to separate two 
things, because it is not a question of election versus 
appointment or what have you. It is a question of what do we do 
for the emergency period before any election is possible? And I 
think that is what many of you are focusing in on.
    But it is not--in my mind, it is not a question of either/
or. It is a question of solve the first problem first, which is 
the emergency situation.
    The second problem of how do we do an election and when do 
we do an election then follows that. And remember this: After 
9/11, this country was almost of one mind. It was unreal how 
our opinions about what things were changed and our 
divisiveness went away for a period of time. It didn't last 
forever. But for a period of time, Americans were pretty much 
of a single mind: We are going to do what we need to do to make 
this country okay.
    And I think in any future disaster, you are going to see a 
similar reaction for a while.
    The Chairman. Mr. Davis.
    Mr. Davis. Thank you, Mr. Chair. Great to hear from you.
    I don't know if anybody else noted, but my good friend, Mr. 
Perlmutter, used the word ``lastly'' three times, so don't--
lastly. I would like to begin my questions with Mr. Bishop.
    Mr. Bishop, you don't look any better on video than you did 
the last time I saw you in person.
    Mr. Bishop. I can't--I knew I could just expect that from 
you. I will just not say anything out of respect.
    Mr. Davis. Well, hey, you are a changed man if you have got 
respect for me, my friend.
    Hey, it is great to see you. And, you know, we were 
together that morning on that baseball field, and you and I 
both share that probably as our most terrifying experience that 
we ever had in our lifetimes together. We ended up at the same 
spot at the end of the shooting, and we will forever have that 
bond together of experiencing that day.
    And my question was going to be to you, because I didn't 
remember our margin of the majority back then, but Congressman 
Baird just mentioned that if it worked out differently, if 
David Bailey and Crystal Griner weren't there, it could have 
changed the balance of power.
    I really appreciate the job that all of you are doing in 
putting forth proposals, and I agree that this is something 
that needs to be debated, but I am conflicted just based on the 
discussion and the testimony that I have heard here today as to 
what that solution is.
    Mike, you were with me that day. You are somebody who I 
consider a very close friend. I was not here for your opening 
testimony, so if you mentioned this earlier, I apologize. But 
what do you think is the best thing that we ought to be 
considering today? Because if it is the constitutional 
amendment, I mean, I have got a lot of other great 
constitutional amendments that I support, but they haven't gone 
anywhere in decades.
    So if that is your number one choice, how realistic are we 
to actually be able to do something?
    Mr. Bishop. Well, that is a better question for you and 
your colleagues as to whether or not you are in a good position 
to do anything and how quickly you can do it, but I guess my 
point being here and the point of the Commission in producing 
the recommendation and presenting it to Congress is that if not 
this, what? We all know that these issues exist. We all know of 
the imminent threats to our Constitution, our imminent threats 
to our institutions. And, you know, I think you have to take 
aggressive, quick action to put in place a mechanism.
    And I, unfortunately, don't think it is our luxury to be 
able to look at the amendment process to the Constitution and 
say we don't support it because it is going to take too long. 
We just don't have that luxury. We have got to put this on the 
track and start it down the path as quickly as possible so that 
we--you know, we have, at some point in time, a solution in 
place because we are sitting ducks, to use a very rudimentary 
expression.
    We have done nothing, and we need to be--as was said 
earlier, we need to be prospective in our approach and not 
retrospective because what happened to the Republican 
delegation that day, Barry Loudermilk was just there as well--I 
don't know if he is still in the hearing room. He was there as 
well, and I think we can all agree if it can happen to us, it 
can happen at any time.
    And we--former Congressman Baird mentioned that we were 
also on that train that crashed. Now, I don't know, maybe we 
are bad luck.
    Mr. Davis. Yes. Yes, you are.
    Mr. Bishop. Yes. You were there too.
    My point is that it can happen, and you just don't know 
when it is going to happen. It can be a planned attack. It can 
be absolutely just a tragedy occurrence, but we are--instead of 
taking forward action, we are frozen in our tracks because we 
are talking about how long it is going to take.
    So the path--the journey of 1,000 miles begins with one 
step.
    Mr. Davis. I appreciate you bringing this up as a possible 
solution.
    As the chair--as the ranking member of House 
Administration, my concern is how--is election administration. 
We have had provisions in place that were implemented before 
most of us got to Congress that provide for an election within 
49 days, right?
    The Chairman. 49 days unless there is a previously 
scheduled election within 75 days, and then it goes to the 75.
    Mr. Davis. So election administration. Donna, great to see 
you again.
    You mentioned mail-in ballots, you know, States like Oregon 
put forth. In a time of disaster and a time of war and a time 
of attack, I don't necessarily trust the Post Office is going 
to get those ballots out as effectively as they do in a time of 
peace.
    I would argue States like Florida probably have a really 
good local election administrative process that could work, and 
I guess my goal, in the short term, is we talk about the time 
it may take to implement any agreed-to solution that we may 
have, is how do we ensure that those elections can go off 
without a hitch? Why aren't we replanning election 
administration as part of this issue too, as part of this 
discussion? What do we need to have in place through the 
Election Assistance Commission, through HAVA investments in our 
States to be able to be ready for any possible short-term 
election process?
    I mean, Alaska is going to go through an election process 
for a special election for our friend and former colleague, Don 
Young. And I have been to Alaska, and let me tell you, the 
election administration processes in Alaska are a lot different 
than any other State I see represented around this table today.
    So planning for that election process, is that something 
you have thought of, Donna?
    Ms. Shalala. Obviously, that is a key part of this. All we 
are trying to do is preserve the status quo. This is the most 
conservative approach you can have. What we are interested in 
is protecting the balance of power, covering the losses with 
the least disruption as quickly as possible. Those are the 
principles that we are trying to follow, and to do that, we 
need an election process that is quicker and fairer and 
perceived as fairer. But if we don't do that, we end up with 
small quorums without representation across the country.
    So that is, obviously, a critical part. They need to do 
continuity of government planning as well, and Congress needs 
to look at the resources that are needed to keep--to get that--
really to take advantage of technology and of other things. And 
I am not arguing particularly for mail-in ballots or anything 
else.
    Mr. Davis. Right. No, I understand that.
    Ms. Shalala. I am saying for the period of time. And all of 
us want this to be temporary so that we have representation, 
and we can continue the government, but we also believe in 
tighter elections.
    Mr. Davis. I am going to make some comments lastly. I 
promise you, this will be the last time I use the word 
``lastly'' in this hearing.
    I think we all have the same goal. We want something in 
place in case of that disaster. What it is I think should be a 
layered approach that this committee should look at, that would 
include election administration, would include long-term 
whatever--whatever was decided upon the best process for 
continuity.
    But I think what makes this House special is that we don't 
have anyone appointed as our successors. We are the ones that 
have special elections. The Senate, based upon each individual 
State's laws, has a different process. So we have to take that 
into consideration constitutionally. It is what our Forefathers 
imagined.
    Now, I do believe precedents have been set in a time of 
war, in a time of disaster. The executive branch, they don't 
need Congress now to begin a conflict of retribution and 
retaliation. They certainly wouldn't need it if Congress was 
incapacitated for a short term.
    However, I am glad we are having this debate because I do 
believe, based upon the numbers that Congressman Baird laid 
out, that if there were vacancies in Illinois's 13th District, 
in Georgia's district, and in Michigan's district, among 
others, with a different outcome on June 14 of 2017, I believe 
the constitutional crisis would have been that we would have 
seen the minority in the House want to immediately become the 
majority.
    That is something that is--you know, I hadn't thought of 
until this morning. But it is something that, again, we have to 
prepare for. I am glad everybody is here working on this issue. 
I am glad we have got a great team on mod comm and the rest of 
the committees of jurisdiction.
    And I thank each and every one of you lastly.
    The Chairman. All right. I have got Ms. Van Duyne and then 
Ms. Scanlon.
    Ms. Van Duyne. All right. And I hate following Rodney 
because I could never be as short, sweet, or funny, funny as 
you.
    So I appreciate this conversation. I think I am in a unique 
position being a freshmen, a freshmen who came in in the middle 
of a pandemic, and a freshmen who came in not ever seeing 
Congress as a Member, how it normally works.
    You know, Ms. Shalala, you use the word ``temporary'' a 
number of times. The definition of temporary, the definition of 
incapacitation, and the definition of emergency I think have 
been redefined over the last 2 years. I look at the word 
``temporary'' and what we have done with our temporary response 
to the pandemic, which I appreciate you bringing up, because it 
is the first time that we have actually brought up the context 
in which we are having this conversation, the use of proxy 
voting, the use of remote meetings.
    I have been here for almost 15 months. There are Members of 
this body I have yet to meet. There are Members of this body 
that do not have open offices for constituents to come into 
because we are still in an emergency, we are still handling 
this in a temporary fashion, and it has been over 2 years.
    So I would ask what is the problem right here that we are 
trying to solve? I think right now if it is in a pandemic 
situation and it is temporary, these solutions that we are 
discussing I think are way too broad, and have already shown an 
opportunity to be completely misused.
    I also start thinking about the history of our country, 
where we came from, the pandemics that we have had, the natural 
disasters that we have had, the wars that we have had at home 
and abroad, and how we were able to come and do our job. We 
were able to come and have conversations, meet in committees, 
be right down the street and talk to one another, and how 
difficult that has been in the last 2 years.
    And yet, our Forefathers were able to get here without 
such, you know, comforts as planes and, you know, phenomenal 
car systems and highway systems. We were able to do that then.
    And I understand that the threats upon this country and 
upon this body have definitely changed, but I am also concerned 
about the lack of transparency and having--you know, keeping in 
secret who your Representative is going to be to me is 
problematic. I think when we pick one person to be our 
replacement, you know, the fact that we have got a 50 percent 
divorce rate shows that sometimes the person that we pick isn't 
exactly the person that we think they are going to be.
    And I understand these are short term, but, again, short 
term and temporary have absolutely changed. We have redefined 
that in the last 2 years.
    Mr. Culvahouse, there is definitely still distrust. I live 
in the State of Texas, and, you know, we have a saying right 
now because we see so many different transfers coming from one 
particular State, Don't California my Texas. That is still 
happening today. We have not been able to move beyond that.
    But I would bring to the attention of this committee that 
we are looking at a number of different recommendations from 
the board; the first being a mass amount of casualties such 
that we don't reach a quorum. And I think there are a number of 
ways that we could, in a temporary position, be able to solve 
that. And I understand 49 days is the issue, right? I mean, is 
that what this board is saying? Because this is what all the 
temporary--and temporary is being defined as 49 days or, in the 
case that you have got another election already scheduled for 
75 days less, then it would be that. Is that the issue we are 
having is the 49 days is why we are here today?
    Mr. Culvahouse. I will go first. No, I don't think so 
because, I mean, 49 days is a long time in a crisis, right? As 
Brian talked about all of the things we are doing in the 
aftermath of 9/11, let's imagine a scenario: You have a nuclear 
attack, and you have an acting President who may not even be a 
Cabinet member, who may not even be a Cabinet member, and you 
have a rump group of--and you have a fewer than--you have, you 
know, 100 Members of the House surviving, and you have an 
acting President who wants to surrender the Navy to the 
Chinese. I am really doing a Tom Clancy kind of thing.
    You would expect and hope that the House and the Senate 
would impeach that President, but that President--and I am 
doing a lawyer's unimaginable horribles thing, Congresswoman. 
But having been a White House counsel, that acting President's 
White House counsel would say there is no House, There is no 
House. It doesn't have a majority.
    Ms. Van Duyne. And to your point----
    Mr. Culvahouse. And you may not even have a Supreme Court. 
And so, it is--I think time is of the essence, and that is 
why--I don't think--our Commission would suggest there should 
not be any interregnum where there is not a functioning House 
of Representatives. We believe there should always be a 
functioning House of Representatives and a functioning Senate.
    Ms. Van Duyne. Let me ask, Mr. Rogers, I know that you also 
had your----
    Ms. Shalala. Yeah, let me just add onto that.
    We are distinguishing between a pandemic where people are 
still alive, and if there is a problem with proxy voting, I 
happen to think when I was here that there was a problem with 
the proxy voting. We tested it out. We clearly needed to 
tighten up on that. But there is a distinction between a 
pandemic and when Members of Congress are actually dead, and 
their areas don't have representation. That is where we are 
recommending temporary until there are elections.
    Ms. Van Duyne. Okay. Because I am looking at recommendation 
2 that says: Amend the Constitution to authorize that the House 
and the Senate shall each have the power to provide for 
emergency procedures, whereby the bodies would allow remote 
forms of attendance and participation in the businesses of 
either the House or Congress subject to the restrictions that, 
and it gives a number.
    So basically I am reading this--and maybe I am 
misunderstanding, but I am reading this to say we are going to 
have proxy voting and Zoom meetings constitutionally available 
at all times.
    Mr. Baird. That is not the intent.
    Ms. Van Duyne. Okay.
    Mr. Baird. The issue is, imagine the House and Senate have 
adjourned for August recess. You are back in your district. 
Vladimir Putin says, I am fed up with how things are going in 
Ukraine. And if you guys intervene in any further way, if you 
don't stop all arm shipments, I will nuke the Capitol. It might 
be----
    Ms. Van Duyne. That is one scenario, but I am also reading 
into it saying that you are, you know, established by being 
physically unable. I would argue that there were a number of 
Members in this body that have said that they are physically 
unable to be here. And we are allowing each Member to define 
whether or not, for them, they are able to be here or not, 
whether or not they consider themselves temporarily 
incapacitated and immediately can come back when they want.
    Mr. Baird. With respect, Congresswoman, that is not in the 
proposal. What is in the proposal is that there may--what we 
don't want to do is say that you must be physically present in 
order to be deemed to have capacity because there may be 
situations where we cannot convene in person. And we need to 
have mechanisms, i.e. potentially remote voting to deal with 
that, because there may be situations where it is not allowed.
    Capacity means your rational ability to make decisions. 
That is what capacity in the legal context means. I mean, that 
was my background was neuropsychology. That is what that 
capacity means. But if I am laid up because I am having a baby 
or because I have got cancer and I am getting treatment, I am 
not incapacitated under any stretch of the law, and my 
constituents should not lose the representation.
    Let me just take it to Texas for just a second.
    Imagine that a flight of the Texas delegation is going back 
home to Texas, and tragedy strikes, or there is a meeting of 
the Texas--Republican or Democratic parties, and somebody takes 
that out. You could lose the representation of the great State 
of Texas in the House of Representatives for a protracted 
period of time.
    What we are trying to say is we want to protect Texans' 
right to have representation in the Congress. That is what we 
are saying, as Secretary Shalala was pointing out.
    Ms. Van Duyne. Okay. So I am looking at the Commission's 
report, and maybe I would just ask that you look at 
recommendation 2, because I just read directly from it. So I am 
not making the words up. But, I mean, when I read things like 
physically unable, it does not say mentally incapacitated. It 
does not say lacks the mental capacity. It says physically 
unable.
    It says that, you know, modes of voting and participation 
must be open to Members, meaning it is their choice, correct?
    Mr. Baird. Well, the point is that they have an opportunity 
to vote if they are not able to be here in person. That could 
be because it is not safe to do so. It could be because----
    Ms. Van Duyne. Which I would argue could be extended to 
include what we have seen over the last 2 years where some 
people say it is not safe to be here.
    Mr. Baird. Well, with respect, Congresswoman. I understand, 
I am not a fan of proxy voting myself. I would prefer direct 
remote voting, and there is technologies in countries that do 
it. We had extensive testimony by David Petraeus, former head 
of the CIA, former general and commanding in Iraq and 
Afghanistan. He managed those wars remotely and gave excellent 
testimony in a remote hearing we held.
    It is plausible to do that, but the key issue here is if 
you don't provide some mechanism for that to happen in times of 
crisis--and we can argue about the day-to-day vicissitudes of 
that. If you don't provide that, you are essentially 
potentially abdicating the Article I, Article I branch 
responsibilities and authorities. We think that is a mistake.
    Ms. Van Duyne. And I think that is the issue that I am 
having a hard time describing--a hard time on coming to terms 
with because I think we are on a slippery slope. I think if 
your--the doomsday scenarios that you are bringing up, I think 
are very valid, and I think those are ones that we need to 
consider moving forward.
    My concern is that the recommendations, as I read them, and 
as I have seen put into play the last 2 years, it is a slippery 
slope that we are going down, what necessitates these 
procedures coming in, what necessities an emergency, what is 
defined, you know, by temporary?
    And, Mr. Rogers, I know that you have comments as well.
    Mr. Rogers. Thank you.
    I was just going to say you really went at something that 
the Members of Congress looked at back 17 years ago and 18 
years ago when I was working on these issues, the balance 
between expediency and legitimacy. And those Members came out 
and the House majorities ended up voting on legitimacy over 
expediency.
    And that really kind of goes to the foundational part of 
the government. Do you want to have people come in that are 
selected by the Members themselves without any voting, without 
any imprimatur of the states, without any imprimatur of the 
people, the American people themselves to populate the people's 
House for 49 days, or whatever it is, but taking all those 
great actions that the gentleman at my left talked about would 
have to happen in 49 days? That was the concern, because it was 
certainly talked about. The constitutional amendment was back 
on the table back then, as it is now, but the Members decided, 
even though it maybe creates a situation, we have got to go 
with legitimacy because ultimately, we are talking about the 
people having faith in what's happening.
    Thank you.
    Mr. Baird. But the definition of legitimacy has been 
defined that somehow, five Member survivors are more legitimate 
than 435 temporary replacements chosen by the people who were 
last elected by the voters.
    I don't possibly see how a micro quorum with lack of 
representation from many States and many districts has more 
legitimacy than a temporary appointment until such time as 
special elections can be held. I don't see how that it is more 
legitimate.
    Mr. Rogers. And if I could just answer that. The 
Constitution says that the Members be chosen by the people. It 
doesn't say that they will be chosen by their predecessors.
    So, yes, you could have a micro quorum for a short period 
of time. Some of the testimony and talks that we had at the 
time suggested that people probably wouldn't be incapacitated 
for that long of a period of time; the idea that most of the 
things that incapacitate you either kill you or you get better 
relatively quickly.
    The House rules, as Mr. Timmons was asking about earlier, 
if you die, you drop out of the quorum. It has been the rule 
now. And so, when people are concerned about the provisional 
quorum, perhaps they should be concerned about the House rule 
that when a person dies or resigns or--death, resignation, 
expulsion, disqualification, removal, or swearing, meaning 
swearing in, the whole Member of the House should be adjusted 
accordingly, which is clause 6 of--clause 5(d) of Rule XX. I 
say clause 6. The (d) and the 6 got juxtaposed in my head.
    I think it is more legitimate to look at where the House 
has been. It has been there for a long time. This precedent, 
now codified, goes back to Deshler's precedence in chapter IX. 
So for a long time, when there has been a resignation or a 
death, the whole Member of the House adjusts and the quorum--
and you guys see that. When you have had someone who has, you 
know, resigned or otherwise, you may not notice it, but the 
whole House number does change, and the quorum does actually 
change.
    Ms. Shalala. But the problem we are talking about is that 
that is for incremental Members--individual Members that may 
die or be incapacitated. What happens if a much larger number, 
and you end up with 10 Members of the House of one party? That 
is what our report speaks to.
    Mr. Rogers. And if I might, so we asked that question of 
Walter Dellenger, who--his take really resonated with the 
Members that ended up voting for the quorum rule, was, it is 
better to have some House than no House at all, that has been 
elected by the people.
    Mr. Culvahouse. Walter Dellenger was a law partner of mine, 
a friend of mine. I recruited him to the firm. I have great 
respect for him.
    What we were talking about here, and with all respect to 
precedent and what--we are recommending a constitutional 
amendment. If that amendment is passed, by definition, then it 
is constitutional. By definition, it is constitutional.
    And the reason we are recommending constitutional amendment 
is, as my colleague said, we didn't come to that. I am a 
conservative. I didn't--you know, I started out late. I am not 
in the business of recommending amendments to the Constitution, 
as our predecessor commission did.
    But all of this came around to the fact that we have got a 
problem, and the problem is a majority of the whole House is a 
quorum. And in a nuclear catastrophe, the most obvious, but 
others--anthrax, whatever, chemical, dirty bomb--you could have 
a nonfunctioning House at a time when the Nation most needs--
most needs a functioning House.
    Congresswoman, the proxy voting, whatever, it really goes 
to facilitating a functioning House in a catastrophic 
circumstance. And we just think that if you are going to amend 
the Constitution, it would be nice to make it clear that the 
House has the rules, in emergency circumstances, or has the 
authority to authorize something other than requiring people to 
show up.
    But our preference is people assemble in Washington. Our 
preference is they--our preference is that these temporary 
appointees be temporary.
    The Chairman. Followup from Mr. Timmons and then Ms. 
Scanlon.
    Ms. Scanlon. Thank you very much.
    Mr. Timmons. Mr. Rogers, the unlikely situation of everyone 
being present at the State of the Union, all 435 Members, 
everybody dies, what happens?
    Mr. Rogers. Well, anecdotally, without knowing for sure, 
but when I was working for the minority leader and Speaker 
Boehner when he was Speaker, there were Members who were asked 
not to attend. And one of those Members told me he was asked to 
not attend--I don't know if that is an official policy or not. 
That is beyond the ambit of my knowledge. And certainly the 
designated survivor in the line of succession, and I believe 
sometimes you have Supreme Court justices who don't come for 
whatever reason.
    So it is possible you could have a very thin amount of 
legitimately elected or confirmed people to act. In the absence 
of that, there is the idea I was mentioning earlier about 
continuity officers that are chosen as officers rather than 
Members temporarily, or you would have to do something else 
like the constitutional amendment.
    The Chairman. All right. Ms. Scanlon.
    Ms. Scanlon. Thank you. Thank you very much, Mr. Kilmer for 
having this important and I think long overdue hearing.
    I am heartened by the fact that we do seem to have 
widespread agreement about some things that are not without 
controversy. One is that Congress should continue. The second 
is that we should have elected representatives in it and 
running the government.
    But, you know, in the last 20 years and in the last 4 or 5 
years, certainly we have seen physical attacks on substantial 
numbers of Members of Congress, whether it was 9/11, whether it 
was the June 17 attack on the baseball team, baseball field, or 
January 6th, any which could have either decimated Congress or 
changed--significantly changed the balance of power. So 
physical attack is one thing we need to be concerned with.
    Plague, and we certainly have been dealing with one of 
those. And, you know, as a member of the Rules Committee, and 
while I believe firmly that the Rules Committee is all 
powerful, as I am sure our former member, Ms. Shalala, does, I 
mean, there were challenges to trying to address an ongoing 
pandemic when we did not have vaccines yet and how we were 
going to keep Members safe when we had a change of Congress, 
and the rules that had permitted certain protective measures 
didn't exist anymore because it was a new Congress. So having 
something that can bridge Congresses and recess periods and 
that kind of thing seems more important than ever.
    And then there is the cyber or other forms of attack. I 
mean, we have talked a little bit about, you know, a nuclear 
bomb taking out D.C. But what about taking down the air traffic 
control system? I mean, then we end up with a system where 
people can't gather or at least not for a significant period of 
time.
    So all of these things, I think, are things we have to be 
concerned about. And I appreciate your trying to grapple with 
the constitutional, electoral, and other issues that we are 
dealing with here.
    Mr. Lewis, I am so appreciative of the work that our 
election officials do across the country, across the political 
spectrum, and it is so important. I just wanted to quickly 
address a couple election administration issues.
    You mentioned the paper that is used for ballots--paper 
ballots, that that could be a possible, sounds like a supply 
chain issue for quick elections. Was that what you were 
suggesting? That was right as I came in.
    Mr. Lewis. Well, ballot stock is a very specific stock that 
we order from printers, and we order it well in advance of a 
scheduled election, so that we have to rely on the vendors to 
get with the manufacturers to produce the correct number of 
ballot stock that we can use in any given election. Obviously, 
in an emergency situation, we may not have that luxury and 
probably wouldn't have that luxury.
    The reason we go to such extraordinary lengths is to 
control so that we know that somebody didn't just slip in a 
ballot somewhere. By using ballot stock, we number it, we 
account for it, we count it, we know how many we received, how 
many we printed, how many were voted, how many were spoiled, 
and how many we have left. And that assures us of, then, that 
we didn't have manipulation of the outcome.
    In an emergency, we may not be able to make any of that 
work. And so if we are going to have to vote on, for instance, 
plain paper, then we have got special considerations. We got to 
figure out how do we do a work around to make sure that the 
numbers that come up are the numbers that really are entitled 
to come up.
    Ms. Scanlon. And that certainly goes to a preplanning kind 
of consideration that I think Secretary Shalala was mentioning, 
that that is something that if we know what we have to plan 
for, then we can plan for it.
    I appreciate your talking about the integrity of the ballot 
stock. It has certainly been on people's minds in Pennsylvania 
and, you know, it has been useful to explain to people that 
Vladimir Putin can't just run off copies of ballots at FedEx or 
Kinko's and slip them in there without someone noticing. And in 
Pennsylvania in particular, we have 67 different counties that 
each order their own stock. So it is very, very difficult to 
mess with a Pennsylvania election.
    Just one other question about the resiliency and what we 
might have to do with election administration in an emergency 
election. I think, I am sorry Mr. Davis had to leave, but he 
talked about not being sure that mail-in ballots would work 
because maybe the post office wouldn't be working.
    But our State election officials have experience now with 
drop boxes and other forms of allowing people to submit their 
ballots other than the post office or the polling place, don't 
they?
    Mr. Lewis. Well, yes, assuming that--I think even in my 
testimony I mentioned, you know, if the post office doesn't 
work, if there is something that prevents them from working, we 
obviously are not then going to have mail as an option. So how 
do you come around and work around that?
    If mail is an option, it then becomes an option that we can 
use and simplify the election for some folks. Admittedly, we 
still have to recognize most of the country does not have 
extensive experience in mail balloting, but we can always make 
that work.
    This is--look, elections officials are incredibly 
resilient. They are going to figure out whatever we got to do 
to make something happen. The problem is whether or not that 
then has legitimacy in terms of the way the public interprets 
what we did. And that certainly is where we are at this point.
    Ms. Scanlon. Sure. And having systems--known systems in 
place that people understand and don't appear to be under 
attack after the fact seems very important.
    Mr. Lewis. Just let me add one thing there. The problem for 
us as elections administrators all around the country is maybe 
25 percent of the jurisdictions are as well funded as any other 
part of government, but that means 75 percent aren't. And so 
having resources to buy spares that you may use at some point 
in the next 20 years is not something that our jurisdictions 
are going to have enough money to do. And so it is one of those 
where we sort of have to say, you have got an emergency, we 
have to have emergency reaction, and that may or may not be 
possible.
    Ms. Scanlon. Okay. Just turning to the similar issue of the 
legitimacy and such in assuring that any temporary replacement 
Members of the House have that legitimacy, much conversation. 
Can we elaborate a little bit, maybe starting with my 
colleague, Rep. Shalala, on sort of the criteria for who might 
be on these designated replacement lists, and has consideration 
been given--I think we talked about former Members or people 
who are already elected officials to address this issue of 
public buy--in.
    Ms. Shalala. No. We didn't--while we had a discussion about 
what they would look like, we didn't add that amount of detail. 
Just, we trusted the Member of Congress to designate a list, 
perhaps, of people they thought were qualified, assuming in 
their own party, so that we wouldn't change the political mix 
maybe.
    Ms. Scanlon. Anyone else want to comment there on--yeah.
    Mr. Culvahouse. Yeah. We talked--I will go to Brian 
quickly. I mean, we talked about such things as making it clear 
that they would be disqualified for standing for election. So, 
I mean, the confidence of the electorate and the government 
that there is--you know, that this isn't a way to, you know, to 
leave a legacy by will for your successor, to mandate your 
successor. We went back and forth over whether it should be 
public or private. So we just didn't--we left it silent with 
the notion that, you know, that the Congress and the drafters 
of the amendment are the best people to do it.
    Brian?
    Mr. Baird. Congresswoman, a couple quick points. One, 
unfortunately, I don't think there is agreement on this in the 
testimony today or even some of your colleagues that we do 
believe in continuity of the Congress. Because if we don't have 
a Congress for 49 days--and by the way, I should say, 
parenthetically, since that law was passed, there have been 
very, very few elections under normal circumstances in 49 days, 
let alone a national crisis.
    And we would like to believe our enemies will play by the 
rule. They will only attack Washington, D.C. and only while we 
are--no, our enemies are going to attack us in multiple 
locations, rendering 49 days improbable and impractical. So 
there may not be agreement that we all favor continuity of the 
Congress.
    One other really quick note, Mr. Chair, because I really 
want it to get into the record. The gentlelady from Texas who 
left, and I am sorry she did--Texas has on its books a law 
providing for temporary replacement from members of the 
designated members from their legislature. So Texas has in 
place already the very kind of mechanism that this commission 
has recommended. And so I would urge that the Texas government 
somehow needs to look at that and say, well, it works for us 
actually pretty well at the State.
    The Chairman. I really appreciate--and I appreciate the 
final point, because I think your report said the average 
special election is, on average, about 150 days, so----
    Go ahead, Mr. Rogers, and then we got to wrap. I am 
unfortunately going to have to set the land speed record to 
Rayburn.
    Mr. Rogers. Thank you. I will be quick.
    First of all, during the look at the special elections law 
at that time, 10 States had less than or approximately 45 days. 
And during the consideration, the minority wished to have 75 
days in the first Congress, which was voted down. And then 60 
days was voted down the next time.
    And I would respectfully disagree with Mr. Baird. I think 
during a national crisis, we will be able to focus quite a bit 
more because it will be the most important thing going on, and 
we will get it done in much less time.
    Thank you.
    The Chairman. I want to thank all of our witnesses for 
their testimony today. I would like to thank our committee 
members, as well as Representatives Scanlon and Loudermilk who 
joined us today. I want to thank our committee staff for 
putting together, I think, a terrific hearing.
    You get a sense of why we decided not to limit members to 
5-minute questions because this is complicated stuff. And I 
think it is actually worthwhile for members to be able to pull 
on some of these threads.
    I also want to thank our stenographers for taking record of 
the events of the day.
    Without objection, all members will have 5 legislative days 
within which to submit additional written questions for the 
witnesses to the chair which will be forwarded to the witnesses 
for their response. I ask our witnesses to please respond as 
promptly as you are able.
    Without objection, all members will have 5 legislative days 
within which to submit extraneous materials to the chair for 
inclusion into the record.
    Again, I want to thank our terrific witnesses. I can't help 
but notice Norm Ornstein in the crowd. Seems like this would 
make for a very good Oxford-style debate, by the way. I know 
that you are the father of that idea.
    I think this is a really important conversation, and I 
appreciate each of you being a part of it. And I am sorry that 
I am going to sprint out of the room and not be able to thank 
you personally, but please accept my gratitude.
    And, with that, this hearing is adjourned. Thanks 
everybody.
    [Whereupon, at 11:15 a.m., the committee was adjourned.]
     

                               APPENDIX I

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                              APPENDIX II

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