[Congressional Record Volume 150, Number 75 (Wednesday, June 2, 2004)]
[House]
[Pages H3665-H3681]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONSTITUTIONAL AMENDMENT REGARDING APPOINTMENT OF INDIVIDUALS TO FILL
VACANCIES IN HOUSE OF REPRESENTATIVES
Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 657, I
call up the joint resolution (H.J. Res. 83) proposing an amendment to
the Constitution of the United States regarding the appointment of
individuals to fill vacancies in the House of Representatives, and ask
for its immediate consideration.
The Clerk read the title of the joint resolution.
The text of House Joint Resolution 83 is as follows:
H.J. Res. 83
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled (two-thirds of
each House concurring therein), That the following article is
proposed as an amendment to the Constitution of the United
States, which shall be valid to all intents and purposes as
part of the Constitution when ratified by the legislatures of
three-fourths of the several States within seven years after
the date of its submission for ratification:
``Article --
``Section 1. Prior to taking the oath of office, an
individual who is elected to serve as a Member of the House
of Representatives for a Congress shall present to the chief
executive of the State from which the individual is elected a
list of nominees to take the individual's place in the event
the individual dies or becomes incapacitated prior to the
expiration of the individual's term of office. The individual
shall ensure that the list contains the names of not fewer
than two nominees, each of whom shall meet the qualifications
for service as a Member of the House of Representatives from
the State involved. After the individual takes the oath of
office, the individual may present revised versions of the
list at any time during the Congress.
``Section 2. If at any time a majority of the whole
membership of the House of Representatives are unable to
carry out their duties because of death or incapacity, or if
at any time the House adopts a resolution declaring that
extraordinary circumstances exist which threaten the ability
of the House to represent the interests of the people of the
United States, the chief executive of any State represented
by any Member who is dead or incapacitated at that time shall
appoint, from the most recent list of nominees presented by
the Member under section 1, an individual to take the place
of the Member. The chief executive shall make such an
appointment as soon as practicable (but in no event later
than seven days) after the date on which Member's death or
incapacity has been certified. An individual appointed to
take the place of a Member of the House of Representatives
under this section shall serve until the Member regains
capacity or until another Member is elected to fill the
vacancy resulting from the death or incapacity. The State
shall provide for an election to fill the vacancy at such
time and in accordance with such procedures as may be
provided under State law, and an individual appointed under
this section may be a candidate in such an election. This
section shall not apply with respect to any Member of the
House who dies or becomes incapacitated prior to the seven-
day period which ends on the date on which the event
requiring appointments to be made under this section occurs.
``Section 3. During the period of an individual's
appointment under section 2, the individual shall be treated
as a Member of the House of Representatives for purposes of
all laws, rules, and regulations, but not for purposes of
section 1. If an individual appointed under section 2 is
unable to carry out the duties of a Member during such period
because of death or incapacity, the chief executive of the
State involved shall appoint another individual from the same
list of nominees presented under section 1 from which the
individual was appointed under section 2. Any individual so
appointed shall be considered to have been appointed under
section 2.
``Section 4. Congress may by law establish the criteria for
determining whether a Member of the House of Representatives
or Senate is dead or incapacitated, and shall have the power
to enforce this article through appropriate legislation.''.
The SPEAKER pro tempore. Pursuant to House Resolution 657, the
gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman from
Michigan (Mr. Conyers) each will control 45 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
General Leave
Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on House Joint Resolution
83, currently under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, today we debate whether we should amend the Constitution
of the United States to allow House Members to be appointed in the wake
of mass vacancies caused by a terrorist attack.
After September 11, 2001, no one would deny the real potential of
such a catastrophe striking this body, but fundamentally today's debate
is about whether to preserve lawmaking by a House of Representatives
elected by the people or to deny the right of elected representation
during the most crucial moments of American history and allow lawmaking
by an appointed aristocracy.
{time} 1545
I would urge the membership to soundly defeat this constitutional
amendment to preserve the People's House as an elected House and not as
an appointed House.
Let us be clear, any constitutional amendment denying the right to
elected representation would accomplish what no terrorist could, namely
striking a fatal blow to what has always been the People's House. The
House, unlike the Presidency and the Senate, are unique among all
branches and bodies of the entire Federal Government. It is the only
branch institutionally designed to always reflect the popular will
through the legislation it passes.
When terrorists attacked on September 11, 2001, it was an elected not
an appointed Congress that acted in its wake; and the legislation
passed by that elected Congress has a legitimacy that legislation
passed by an appointed Congress would not have had. All of Congress'
powers under Article I of the Constitution are only legitimately
exercised by an elected House.
H.R. 2844, the Continuity in Representation Act, which passed the
House on April 22 by an overwhelming bipartisan vote of 306 to 97, with
more Democrats voting for it than against it, will ensure that the
House is repopulated by legitimate democratic means within a maximum of
45 days after an attack causes mass vacancies. Within those 45 days,
any constitutional amendment that allowed lawmaking by appointed
members would pose far more risks than benefits; and legislation passed
by an appointed House that did not comport with the people's will would
have to be repealed by a later elected House, leading to further
discontinuity at the very time when continuity is most important.
The Founders explicitly rejected the proposition that the appointment
of Members is compatible with the American Republic. James Madison
wrote
[[Page H3666]]
that ``it is particularly essential that the House should have an
immediate dependence on, and an intimate sympathy with, the people''
and that ``elections are unquestionably the only policy by which this
dependence and sympathy can be effectively secured.'' As Madison stated
in his speech to the Constitutional Convention, ``a gradual abridgement
of the right to elected representation has been the mode in which
aristocracies have been built on the ruins of popular forms.''
This amendment is an abridgement of the right to elected
representation. Contrary to the claim made by proponents of
constitutional amendments, the President would not be unconstrained in
its conduct immediately following a catastrophic terrorist attack. Of
course, the President would be well within his constitutional authority
to execute the laws in times of crisis.
However, the Founders also made it clear that the President would
always be subject to impeachment by the House of Representatives,
either a House operating on reduced membership or a later fully
reconstituted House if the President abused executive authority at any
time. And of course no law can be enacted solely by a House operating
with a few Members alone. Further, the issue of incapacitated House
members can be handled by changes to House rules. The Committee on
Rules is already exploring those options.
Demonstrating this is not a partisan issue but one concerning the
legitimacy of all Members of the House and of the legislation it
passes, the House of Representatives, controlled both by Democrats and
Republicans, throughout history has rejected all constitutional
amendments authorizing appointed House Members sent to it by the
Senate, even during the height of the Cold War. It is important to
remember that the American people have always been able to elect their
leaders, even during our Nation's darkest hour, the Civil War, when
General Lee's Army was just a few miles away from this building.
Today we consider House Joint Resolution 83 sponsored by the
gentleman from Washington (Mr. Baird). This proposed constitutional
amendment contains all the flaws of amendments allowing the appointment
of nonelected members, but it also has some unique additional problems.
The Baird amendment would not only override H.R. 2844, which already
has passed the House by an overwhelming bipartisan vote, but it would
forever strip the Congress of its discretionary authority to expedite
special elections in emergency under its existing constitutional
powers.
Let me repeat this. The amendment before us takes away the right of
Congress under Article I, section 4, that expedites special elections
in emergencies.
The amendment also requires House Members, prior to taking the oath
of office, to submit a list of names to the governor that the governor
can draw from in appointing that Member's replacement. This would
subject candidates for Congress forever after to endless questions
during their campaigns regarding whom they placed on the list and their
connection to the candidate, and perhaps questions that can become
embarrassing, creating needless distractions in what is supposed to be
a clear contest between individual candidates.
And if a candidate did not tell the press who was on his or her list,
the voters would not have a say on who the candidate's potential
replacement should be. Such a list would also invite great mischief,
including the placing of names on the list of those owed political
favors.
Finally, H.J. Res. 83 provides that ``Congress may by law establish
the criteria for determining whether a Member of the House of
Representatives or Senate is dead or incapacitated.'' This provision
would deny the House its existing authority under the Constitution that
allows each House to adopt its own rules, an authority the Committee on
Rules is already exercising, to address incapacitation by the rules,
and needlessly involve the Senate in how the House operates. By doing
so, it would unfortunately make addressing continuity of government
more difficult than it already is.
Mr. Speaker, I doubt that any Member has faced a vote before that so
clearly defines the principles stood for. Either you will vote to tear
the fabric of our Constitution and deny the right of self-government
under the laws passed by the people's chosen representatives, or you
will vote to preserve the sacred right to elected representation.
That sacred right has endured since America's birth, through two
World Wars, a Civil War, and now a shadow war waged by vicious haters
of democracy. The terrorists would like nothing more than to see us
rewrite our Constitution, the supreme law that comes closest to being
our Nation's soul, to reflect their twisted vision of autocratic rule.
Around the world, both our friends and our enemies are watching. Vote
this amendment down and show them what this House stands for and what
it stands against.
Mr. Speaker, I reserve the balance of my time.
The SPEAKER pro tempore (Mr. Simpson). Does the gentlewoman from
California (Ms. Lofgren) seek to control the time of the gentleman from
Michigan (Mr. Conyers)?
Ms. LOFGREN. Yes, Mr. Speaker, I do.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from California?
There was no objection.
Ms. LOFGREN. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, 6 weeks ago the House of Representatives passed H.R.
2844, the Continuity of Representation Act of 2003, which was written
and offered by the gentleman from Wisconsin (Mr. Sensenbrenner). This
bill provides for the expedited special election of new Members of
Congress to fill seats left vacant in extraordinary circumstances.
Under this bill, when such extraordinary circumstances occur, a
special election must be called within 45 days. This bill was an
important first step in addressing how the House continues to function
in the event of a catastrophe, and that is why I voted in support of
the bill.
I would note that outside scholars have questioned whether or not the
Federal Government has the jurisdiction to impose this scheme on the
States. I do not argue that today, but I think to some extent there is
an open question as to that. There is also a more fundamental issue
which may be partially addressed today, and that is what happens in the
45 days between a disaster that could eliminate the House of
Representatives and the holding of these special elections.
In the 45 days following September 11, the House of Representatives
cast 69 votes. Some of them were very important measures that helped us
respond to the terrorism event. If there is no House of
Representatives, there can be no Congress, and if there is no Congress
to play its role in the constitutional scheme, the only thing that
could happen in such a circumstance would be for the President to
assume dictatorial powers and to end our system of constitutional
government, an outcome that no one in this House or in this country
wishes.
Under H.R. 2844, the House of Representatives would have no way to
function for a month and a half; and without the House, there is no
Congress. Several Members have introduced constitutional amendments
that would address this problem. The gentleman from Washington (Mr.
Baird) has offered an amendment which we are just about to vote on
today. I have also introduced a constitutional amendment, H.J. Res. 96,
which takes a different approach from the Baird proposal; and our
colleagues, the gentleman from Connecticut (Mr. Larson) and the
gentleman from California (Mr. Rohrabacher), have done similar things.
This whole issue is very complex, and it may be that none of the
amendments are quite ready for our approval, but they certainly do
command our attention. All deserve to be debated by Members of
Congress, yet I believe that the House would be best served if the
committee of jurisdiction, the Committee on the Judiciary, were to have
hearings to sort through the complexities of this issue and then be
able to present our findings to the full House for consideration.
However, during the 108th Congress, the Committee on the Judiciary
has not had a hearing on this issue to compare the various proposals
and to discuss the advantages and disadvantages
[[Page H3667]]
of each. In fact, I have requested a hearing. I did so during the
markup of the Baird amendment in the Committee on the Judiciary, but
none have been held.
Today, some may point out that there was a hearing on the
constitutional amendment offered by the gentleman from Washington (Mr.
Baird) in the 107th Congress. That is true, but the amendment on
today's agenda is significantly different from the Baird amendment
considered 2 years ago. This is a new amendment that was first
introduced last December.
A distinguished commission that included former Speakers Foley and
Gingrich, as well as Lloyd Cutler and former Senator Alan Simpson,
studied this matter at some length and reached the conclusion that we
need a constitutional amendment. I am not suggesting that we should
simply accept their recommendations, but at the very least we should
consider and evaluate their findings before we cast a vote that will
define the stability or instability of the country in the event of a
national crisis. Unfortunately, the Committee on the Judiciary has not
had a single hearing on any of these amendments, so we will not have
the benefit today of hearing from the scholars, former speakers and
other distinguished leaders on this complex issue.
And now the leaders of the whole House are making the same error as
the Committee on the Judiciary. They have scheduled a vote on an
amendment that will decide the fate of our Congress during a
catastrophe without first holding hearings to address the merits of the
Baird approach and all of the others proposed by various leaders on the
continuity of Congress.
Let me repeat. Today we are being asked to vote on an amendment to
the United States Constitution, but we have not had even one hearing on
the amendment in the Committee on the Judiciary in this Congress. It is
not often that the Committee on the Judiciary marks up a constitutional
amendment to the full House before holding a hearing.
Consider, for example, the constitutional amendment to protect the
rights of crime victims. That particular amendment was introduced in
the 108th, 107th, 106th, 105th and 104th Congress, and on each occasion
prior to markup there were Judiciary Committee hearings.
Also, consider the committee's treatment of a constitutional
amendment to prohibit flag burning. A proposal on this issue was
introduced in the 108th, 106th, 105th and 104th Congress, and each time
the Committee on the Judiciary undertook hearings.
Finally, in the 105th and 104th Congress, a constitutional amendment
was introduced to limit the Federal Government's ability to raise
taxes, and hearings were permitted on each occasion.
The majority has already seen fit to schedule a series of five
judiciary hearings over the course of several months to discuss the
issue of same-sex marriage and a potential constitutional amendment. It
only makes sense that this House should not vote on an amendment to the
U.S. Constitution before the Committee on the Judiciary holds at least
one hearing.
This issue of the continuity of Congress should not be an exception.
It is vitally important to our democracy and requires more
deliberation.
{time} 1600
Today, like I did in the Committee on the Judiciary 1 month ago, I
will not vote to support the Baird amendment; but I will vote on a
motion to recommit so that the Committee on the Judiciary will have a
chance to appropriately hold hearings and review various approaches to
this vital issue to our democracy. Some will reach a reasoned, but
different, conclusion relative to the Baird amendment itself; but I
think all will agree this body would be better served with extensive
hearings on this complicated and enormously important subject.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentlewoman
from Michigan (Mrs. Miller), who served two terms as Secretary of State
and chief elections officer of the State of Michigan.
Mrs. MILLER of Michigan. Mr. Speaker, I rise today in opposition to
this resolution, which is proposing to amend our Constitution by
allowing for the appointment of Members of the United States House of
Representatives in the event of a national emergency.
For over 225 years, the House of Representatives has been the
people's House; and I say that I think that is so important, as we
think about that, we have been known as the people's House. Members of
Congress are required by the Constitution to be elected directly by the
people. This requirement, of course, allows for all citizens to truly
have a voice in their government and provides probably the most
important of all of our checks and balances.
Under this resolution we are debating here today, elected
representatives would be replaced by non-elected appointees, in a
complete counter to the intent of our Founding Fathers. In a very
strange irony, this provision would kick in at precisely the time when
our citizens need to be heard the most, at a time of crisis.
As well, provisions of this resolution call for sitting Members of
Congress to provide the names of two people to replace them in the
event of their own death or incapacitation. One of these two people
would then be appointed to the seat by the Governor of the appropriate
State. This nonelected Member of Congress would then serve out the
remainder of the relevant 2-year term, with all of the rights and
privileges of an elected Member.
Yet appointing legislators who were not voted on by the public would
negate the entire purpose of this House, which is to represent the
people directly.
Just last month, this Chamber passed H.R. 2844, The Continuity in
Representation Act of 2004, of which I was a very proud cosponsor. H.R.
2844 was passed with overwhelming bipartisan support because it puts
forth a very clear, concise plan to deal with the now-real
possibilities that we once considered unthinkable, quite frankly. It
calls for expedited elections; and as the chairman had said here, as a
former Secretary of State of a State of about 10 million people, I feel
the timelines we outlined in that H.R. 2844 were very, very realistic.
Every Member of this House is an elected official who earns the right
to come here to Washington and represent our constituents because we
were voted in by a majority of the people in our respective districts.
Rather than tinker with one of the pillars of our democracy via a
reckless change to our Constitution, we should vote this amendment down
and continue to press for the full adoption of H.R. 2844.
I urge a ``no'' vote on this resolution.
Ms. LOFGREN. Mr. Speaker, I yield 13 minutes to the gentleman from
Washington (Mr. Baird), the author of this legislation.
Mr. BAIRD. Mr. Speaker, would the gentlewoman be interested in
joining me in a colloquy?
I appreciate very much the comments of the gentlewoman, and I was
intrigued by one thing she said. She said that even temporary
appointments, I will paraphrase briefly here, would violate the entire
purpose of the House of Representatives.
My understanding of Madison's approach was that there were more
elements to having a house of representation than mere election, as
important as that is, but also the role of checks and balances, the
role of proportionate representation, the division of authorities
between the legislative branch and the executive branch.
Madison specifically said: ``The accumulation of all powers,
legislative, executive and judiciary in the same hands, whether of one,
a few or many, and whether hereditary, self-appointed or elected, may
justly be pronounced the very definition of tyranny.''
What I would like to ask the gentlewoman is, if we have no House of
Representatives, less than a quorum, do we have an alternative to the
concentration of the power in the executive branch under current law?
Mrs. MILLER of Michigan. Mr. Speaker, will the gentleman yield?
Mr. BAIRD. I yield to the gentlewoman from Michigan.
Mrs. MILLER of Michigan. Mr. Speaker, I would say impeachment could
be a possibility there. I do believe as you read the Constitution, the
operative phrase, the operative theme, as we try to determine and
decipher exactly what the intent of our Founding Fathers was, is that
every Member of
[[Page H3668]]
this House needs to be directly elected by the people.
While I appreciate the gentleman's insistence on a constitutional
amendment, it is obviously well thought out, the gentleman feels very
passionately about it, I could not disagree more strongly.
Mr. BAIRD. Mr. Speaker, reclaiming my time, I appreciate this need to
exchange, because this is exactly what we need to do. During the 45-day
period, as I understand it, the gentlewoman is saying the only check on
the executive would be the threat of impeachment.
Does the gentlewoman believe that is consistent with the Framers'
intent, when they wrote all of article I and purposefully chose article
I as the description the legislative branch, or does she believe the
Framers' intent was to say the executive can have carte blanche to run
the country as they might, but 45, and possibly 75, days later under
the bill the gentlewoman coauthored, the Nation has to wait 75 days for
impeachment as a check on the executive?
Mrs. MILLER of Michigan. Mr. Speaker, if the gentleman will yield
further, I am not an expert in this part of the law, but I do believe
Federalist Paper No. 47 addresses principally the gentleman's argument
there. I will tell you though, as I mentioned, I was the Secretary of
State for 8 years in one of our largest States, and I really looked at
this bill and talked to a number of my colleagues, as well as many
members involved in the elections industry, to make sure we had a
reasonable time frame that we set out for expedited elections.
Mr. BAIRD. Mr. Speaker, reclaiming my time, if I may, I am not
disputing that. The point before us here, we have passed that bill. The
point before us here is what happens in the 45 days? I think there may
be grounds to dispute whether you can have an election or not. But the
point of this legislation is to say how do we get this Congress up and
running promptly.
Let me give you a scenario and see if you are comfortable with it.
John Ashcroft said last week or the week before that high-profile
targets include this summer the Democratic convention and the
Republican convention. I will take him at his word.
If it is true that we are a high-profile target, and if you are at
the Republican convention or we are at the Democratic convention and
terrorists attack, let us suppose they attack during the President's
speech at the Republican convention, and the president is killed,
heaven forbid this should happen, if the President and Vice President
are killed and a number of my good friends on your side of the aisle
perish, of necessity at that point the House will have to reconvene,
there will be a new majority, hence a need to elect a new Speaker.
Presumably at that point the Democrats control the House of
Representatives, presumably we will elect a Democratic Speaker, and,
under the law of succession of 1947, that person is now in line for the
Presidency of the United States. That is my understanding of the status
quo as it exists in law today.
I would just ask the gentlewoman if she is comfortable with that or
disputes that is the status?
Mrs. MILLER of Michigan. Mr. Speaker, if the gentleman will continue
to yield, my understanding is that the gentleman's amendment here
today, the resolution we are talking about here today, actually would
override the bill we have already passed in a bipartisan way. That is
really my intent, to make sure we focus on that as well. I think that
is very, very important.
Mr. BAIRD. Mr. Speaker, reclaiming my time, the legislation that I
put forward, actually it would obviate, not necessarily override. I
really want to underscore that point. The chairman has repeatedly,
really since day one of this, I think, misrepresented this. He
misrepresented it in his opening comments. He said the question before
us, in essence, is whether you will have an elected Congress or an
appointed aristocracy.
The true question is, will you have any Congress or not? Not my bill,
not the bill of the gentlewoman from California (Ms. Lofgren), not the
bill of the gentleman from California (Mr. Rohrabacher), not the bill
of Senator Cornyn, not any of the bills put forward would in fact ban
elections, as the chairman repeatedly says. It is deeply frustrating to
me to have a matter of this importance be misrepresented.
No one disputes, and I firmly agree with you, that the mechanism to
replace House Members should be direct election, ideally, and we should
have them as promptly as possible. But if we are so concerned about an
aristocracy and appointment not responsive to the people, are you not
equally concerned that a party mechanism for selecting a candidate
implies in itself some degree of potential beholding to those who
appoint it? Is the gentlewoman concerned about that at all?
Mrs. MILLER of Michigan. Mr. Speaker, if the gentleman will yield
further, no, I do not share the gentleman's consternation with that
particular facet of it.
But as the gentleman has outlined, as I say, we are now dealing with
a situation which we previously before 9/11 thought was absolutely
unthinkable. So it is difficult for us all to stand up here and think
about our own demise, numerically how many would have to be
incapacitated or whatever before we would move forward with something
like this.
I think the gentleman has laid out in a very speculative way a number
of different scenarios. The gentleman and I, along with many others,
had an opportunity to debate this at a hearing in front of the
Committee on House Administration. We went through all of these
different kinds of things.
I think we have just different approaches to what needs to happen
here. But I feel very, very strongly, a vast majority, a bipartisan
majority of this House feel that all of us should be directly elected
by the people. I think the bill we passed previously does address that
in a realistic way.
Mr. BAIRD. Mr. Speaker, reclaiming my time, I thank the gentlewoman
for her time and appreciate her engaging in this colloquy. I sincerely
do.
Mr. Speaker, the reason I asked the gentlewoman to respond is this is
what we really need to do with this bill. The gentleman from Wisconsin
(Mr. Sensenbrenner) would claim that he brought this up at our request.
In fact, we did not request this fashion of bringing this legislation
up. What we requested was that all measures to provide for continuity
be brought up for debate, including my own, the bill of the gentleman
from California (Mr. Rohrabacher), the bill of the gentlewoman from
California (Ms. Lofgren), the bill of the gentleman from Connecticut
(Mr. Larson), the bill of Senator Cornyn in the Senate, two Republicans
on that list, by the way, several Democrats, that they all be brought
up and we have full discussion.
I would note for the record that I see on the House floor now about
six colleagues, maybe seven. Two things concern me about that: first,
if we really take this seriously, I believe we ought to all take it
seriously. I do not think for a second my bill is perfect. I think
there is merit to the other legislation. But I do not think we are
going to get to a solution unless we grapple with this issue, unless we
take it seriously.
The second thing that concerns me is let us suppose this random group
of survivors here, this six or seven on the floor, are the group of
survivors. Under the Constitution, that is not a quorum. The
Constitution, in my judgment, is rather clear that a quorum is a
majority of the Members, but House Rules state it is a majority of
those chosen, sworn, and living.
Importantly, would the people of the United States of America believe
that the seven or eight of us here now, relatively randomly chosen if
we were survivors, are consistent with the representational nature of
this body? It is not just the people's House because it is directly
elected, it is the people's House because it deals with proportionate
representation. It is the people's House because of prompt reelections.
Would the eight of us here right now be sufficient to send this
Nation into war? Would the eight of us be sufficient to impeach a
President? Would we be sufficient to select one of our own as the
Speaker of the House, who would then become the President of the United
States? I noticed in her comments, in response from my friend from
Michigan, not once did she truly address what happened in that 45 days.
We talked about the elections, and I appreciate the importance of
that. Let
[[Page H3669]]
me, if I may, address some of the myths that have been perpetrated by
the opponents of this bill.
First of all, the myth that we have already solved the problem. We
have not solved the problem. We have provided for special elections in
45, possibly as long as 75, days. But this notion that it was an
elected House, not an appointed House that passed legislation, is
rather absurd, when the choice is there might be no House at all to
pass legislation.
Secondly, this notion that continuity is somehow not urgent, that we
do not have to move forward with this. It has been 3 years. On
September 10, 3,000 of our fellow citizens had no idea they were living
their last day, yet they were.
The notion that temporary appointments somehow subvert the right to
election. Again, and I underscore it, nothing in any of the legislation
put forward would take away the people's rights to election.
When the chairman said, and I thought it was rather remarkable, that
my legislation explicitly in the Constitution authorizing the Congress
to deal with the matter of incapacity, that that takes away our right
to deal with incapacity, I found that rather absurd, to say the least.
The legislation before us says that Congress can deal with incapacity
statutorily. How does that ban our right to do so?
The myth, which is just so remarkable, that the appointees would be
irresponsible to the general public does a profound disservice to the
existing Members of the House of Representatives. Indeed, I find it an
insult.
To believe that the people that sent us here with the authority to
send their children to war, as we have chosen to do, to tax them or
give them back their taxes, to impose any number of legislative
remedies and sometimes problems on this country, but then the moment it
comes time to make one of our most profound decisions, who would
replace us in a catastrophe to carry on this institution, that moment,
suddenly we lose capacity of our senses.
{time} 1615
It not only insults us, it insults those who we might nominate to
replace us.
By coincidence, not 30 minutes ago I met with Don Bonker, a gentleman
who represented my district a little over a decade ago, a distinguished
statesman with outstanding international skills. Do we seriously
believe that if I nominated Mr. Bonker to be my replacement that he
would act irresponsibly to care for this country? And if you believe
that impeachment is a worthwhile check on the abuse by the executive,
why do you not also believe that a subsequent election would be a
worthwhile check on Mr. Bonker's conduct if he were to act
irresponsibly? The inconsistencies and illogic are breathtaking
sometimes.
I want to do one other thing. My friend, the gentleman from Arizona
(Mr. Snyder) is here; and I want to compliment him. It is rare in this
body I find that we acknowledge that there may be a shortcoming in our
own legislation and that an opponent of that legislation has pointed
out a shortcoming. The gentleman from Arizona (Mr. Snyder) came to me
this morning, raised an issue; and I think he has a good point. I would
like to be able to fix that.
I would have liked the process such as we propose in the original
rule where you debate things and then have time to amend it. I doubt
that is going to be allowed. But I will say, and I appreciate the
gentleman very much for raising the shortcoming, I will in future
drafts, if we have the opportunity, endeavor to fix that.
But I would also say right now that, even with the shortcoming, I
believe with all my heart that the bill we have before us today is
superior by far to the status quo. So while I expect fully that we may
not pass this bill, I will intend to bring it up with modifications.
Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman
from Ohio (Mr. Chabot), the chairman of the Subcommittee on the
Constitution.
Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding me this
time, and I rise in opposition to this proposed constitutional
amendment.
Every person who has ever served in this House in the over 200-year
history that we have existed as a country, every person has been
elected. Not one has been appointed. When one reads our Nation's
founding document, it soon becomes clear that the right to elected
representation was the very core of its significance and its lasting
value. No constitutional amendment that allows appointed
representatives would be consistent with the very essence of our
Nation's reason for being and, for that reason, I oppose such
amendments, including this one.
James Madison wrote in Federalist No. 57, ``Who are to be the
electors of the Federal representatives? Not the rich, more than the
poor; not the learned, more than the ignorant; not the haughty heirs of
distinguished names, more than the humble sons of obscurity and
unpropitious fortune.''
Constitutional amendments that would allow appointed Members would
deny that sacred heritage.
At the Constitutional Convention, according to the notes taken by
James Madison, delegate George Mason argued strongly for ``an election
of the larger branch,'' that means the House, ``by the people. It was
to be the grand depository of the democratic principle of this
government. It was, so to speak, to be our House of Commons. It ought
to know and sympathize with every part of the community; and ought
therefore to be taken not only from different parts of the whole
republic, but also from different districts of the larger members of
it.''
It was arguments such as these that won the day when our Constitution
was drafted. Constitutional amendments that would allow appointed
Members would violate those principles the Founders believed were most
important.
James Wilson at the Constitutional Convention, according to Madison's
notes, ``contended strenuously for drawing the most numerous branch of
the legislature immediately from the people. He was for raising the
Federal pyramid to a considerable altitude, and for that reason wished
to give it as broad a basis as possible.''
Mr. Speaker, H.R. 2844, which I cosponsored and which passed the
House on an overwhelmingly bipartisan basis, 306 to 97 right here in
this House, preserves America's essential right to elected
representation. This amendment, however, would override H.R. 2844 and
deny the core of America's founding principles and, for that reason, I
strongly oppose it.
Ms. LOFGREN. Mr. Speaker, I would note that when the Founding Fathers
spoke at that time, they were contrasting with a Senate that was
appointed.
Mr. Speaker, I yield 3 minutes and 45 seconds to the gentlewoman from
Texas (Ms. Jackson-Lee), a distinguished member of the Committee on the
Judiciary.
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the distinguished
gentlewoman from California for yielding me this time, and I appreciate
the insight that she provided us in the Committee on the Judiciary when
she asked for a delay so that we might give the kind of attention to
this issue, Mr. Speaker, that I know my colleagues know it deserves.
This is a very intellectual, if you will, and high law debate. As the
distinguished gentleman from Washington (Mr. Baird) said, it has been 3
years, so sometimes distance and absence does not make the heart grow
fonder, or it certainly does not educate us about the crisis in which
we are literally debating.
It is important for the colleagues who are listening to this debate
and who are participating in this debate to realize what the Baird
amendment actually does. He is talking about catastrophe, disaster. He
is talking about a wiping out of the United States Congress, 218
Members dead or incapacitated.
It is nice to stand here and to give out pleasantries and to, if you
will, assume that it could not happen to us. But, as I said this
morning, the beginning of the Constitution said we have gathered to
create a more perfect union, and today we are attempting to debate an
issue that is to create a more perfect union in the light and the
backdrop of the life we lead now: terrorism abounding throughout the
world, Iraq exploding, Afghanistan exploding, and the potential of
terrorist acts as the
[[Page H3670]]
Attorney General has announced. Whether or not it is announced with any
immediate evidence, he has announced it.
So what we are saying to the American people, frankly, is that we are
talking about this body being incapacitated.
Now, I know that we would not want to make light of this, because
some might say something about the incapacity, but we do realize that
this is the most powerful law-making body in the world. This amendment
deserves more than appeasement, and that is what we are getting here.
Frankly, I believe the gentleman from Washington (Mr. Baird) is
accurate. He wanted to have a debate, he wanted to have a hearing
because this is of value to him, not personally, but he believes that
this is a needed constitutional amendment because we may face a
catastrophe, and he wants to incorporate the gentleman from Arizona's
(Mr. Snyder) reflection.
I am interested in finding out whether there can be amendments
dealing with how the appointment process goes forward.
But this is not to undermine the constitutional aspects of election.
This is to suggest that there is nobody here to have an election, that
we are all dead. Does anybody understand the monument of the moment
that we are speaking about?
So when we begin to take this in a very calm and light manner, this
is not what the gentleman from Washington (Mr. Baird) is talking about.
He is not suggesting that we should eliminate the constitutional
provisions or the commitment that we have to a democratic and free
election. He is suggesting that we are in the middle of a crisis.
Now let me just cite for my colleagues the history of this Committee
on the Judiciary since I have been on it. We have had the controversial
hearings dealing with Waco. We have had the controversial hearings that
took up a half a year dealing with the impeachment process of the
President that served just a few years ago, William Jefferson Clinton.
We have had those hearings. We have had the flag-burning hearings on a
constitutional amendment every single year. We have had the victims of
crimes amendment every single year, or a good number of them. We are
going to have the same-sex hearings over and over again. I do not know
if those are life-or-death matters, but we have had our set of
hearings.
Can my colleagues tell me what reason there is, what reasonable men
and women could disagree that we would not placate the gentleman from
Washington (Mr. Baird) by a lousy presentation on the floor of the
House? And I will say lousy not in disrespect of my colleagues but the
fact that this is limited and ridiculous as it relates to the moment
that we are discussing about the incapacitation of this body, 218 dead.
And might I say to my colleagues, that is real. Because on 9/11, those
planes were headed for the United States Capitol.
I would simply say that we need hearings, and we should recommit this
back to the Committee on the Judiciary for full hearings, and we should
not appease, but we should do our jobs and respond to the crisis that
may come forward and work on behalf of the American people.
Mr. Speaker, I commend our distinguished colleague from Washington,
Mr. Baird, for his effort and leadership in pursuing a legislative
answer to questions left after the House passed H.R. 2844, the
Continuity in Congress Act on April 22, 2004.
Like Mr. Baird, I sought to obtain answers to some of the issues
that I found in that bill by offering an amendment, which Mr. Schiff
was kind enough to offer in my absence.
While Mr. Baird's specific problems with H.R. 2844 are slightly
different than those that I had, I support his legislation because it
offers us an opportunity to craft a tighter legislative remedy to the
need to establish a system of continuous leadership in the House of
Representatives.
However, even Mr. Baird's attempt will not be maximized because our
colleagues on the other side of the aisle have seen fit to push this
bill through Committee markup without first allowing the Members to
analyze it in a legislative hearing.
Although H.J. Res. 84 doesn't seek to expand the time to file suits
concerning the special election process, Mr. Baird suggests that the
question of emergency representation be answered before the vacancy can
occur--when the elected Member initially takes office.
To reiterate my proposals to improve H.R. 2844, I suggested first
that the section of the bill that deals with the time in which a
person(s) may file a lawsuit arising out of the Speaker of the House's
announcement of vacancies in the House of Representatives that exceed
100 be increased. This change would expand the ability of an aggrieved
party to file suit for either declaratory or injunctive relief.
Because not every state has a Capital Beltway or even a superhighway
system, and because information travels at a different rate in every
location, it is important that we establish a fair standard for a
filing rule that affects every state in the country. The principle of
procedural due process dictates that every citizen have a realistic
opportunity to obtain legal relief through our Judicial Branch.
Next, my proposal spoke more to the issue of due process for all
citizens by preserving their right to appeal the announcement of a
vacancy. Because the 45 day deadline for special state elections
already places significant constraints on the electoral process and on
the citizens represented due to its brevity, taking away the right to
an appeal from the U.S. District Court would excessively curtail the
procedural due process rights enjoyed by citizens.
Given that the time in which a Federal judge has to compose an order
disposing of these matters is provided in this bill, an equally
expeditious appeals process should be provided so as to maintain
consistency with the U.S. Constitution and the commitment to both the
5th and 14th Amendments.
Lastly, I proposed that the right to sue under the original bill be
extended to the citizens of every state in addition to the chief
executive. This proposal is very important to protect the interests of
all citizens in the various congressional districts in the midst of
party politics. As H.R. 2844 is drafted, Section 2, paragraph (4),
subparagraph (iv) would confer the right to sue in the event of a
vacancy announcement by the Speaker of the House solely to the
``executive authority,'' in Houston's case, the Governor.
Such very limited language almost certainly threatens to deprive the
citizens of a right that they should enjoy in the event that the
Governor chooses not to participate in a suit for declaratory or
injunctive relief pursuant to a vacancy announcement made by the
Speaker of the House. In order to protect the rights of every person
who truly has an interest in a call for a special election, we must
allow citizens to sue for relief.
A careful review of the Judiciary Committee's history with respect to
its past treatment of constitutional amendments evidences a strong
practice of holding hearings prior to any scheduled full Committee
markup of that particular amendment.
Consider, for example, the constitutional amendment to protect the
rights of crime victims. That amendment was introduced in each
consecutive Congress since 1994 (the year the current Majority took
control of the House), and on each occasion, it was the wisdom of the
Committee to schedule a hearing.
Also, consider the Committee's treatment of the constitutional
amendment to prohibit flag burning. A proposal on this issue was
introduced in the 108th, 106th, 105th and 104th Congress and each time
the Committee undertook hearings prior to scheduling a markup.
Moreover, consider the Committee's treatment of the constitutional
amendment to limit the federal government's ability to raise taxes. A
proposal on this topic was introduced in the 105th and 104th Congress,
and hearings were held on both occasions.
With this apparent and undeniably longstanding tradition, we are now
told that a hearing is unnecessary under the present set of
circumstances because a hearing was already held on the Baird amendment
introduced in the 107th Congress. This line of reasoning lacks merit
for two important reasons.
First, as previously mentioned, it has been the well-established
practice of the Judiciary Committee to schedule a hearing on such
proposals prior to proceeding to a markup. This hard and steadfast rule
has prevailed, even under circumstances where the proposed amendments
were virtually identical in nature.
Second, even assuming the general rule was subject to change, the two
versions of the Baird amendment, H.J. Res. 67 (introduced in the 107th
Congress) and H.J. Res. 83 (introduced in the current Congress), are
distinct enough to warrant two separate hearings on their own merits.
H.J. Res. 83, for example, uses a distinct threshold for making
temporary appointments; places considerable limits on the discretion of
the chief executive when he or she is authorized to make such
appointments; and provides a mechanism for an incapacitated Member to
regain his or her seat after recovery from incapacity.
Our Committee has already seen fit to schedule a series of five
hearings, over the course of the next several months, to discuss the
issue of same-sex marriage. With this in
[[Page H3671]]
mind, one single hearing to discuss and consider ideas on how best to
ensure the continuity of our government in the event of a catastrophic
incident is more than reasonable.
Mr. Speaker, I ask that my colleagues think about the gravity of what
this Constitutional amendment will entail. We need to recommit this
bill to the committee of jurisdiction, the Judiciary, and revisit the
important issues that I have stated above.
Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman
from Indiana (Mr. Pence), a member of the Committee on the Judiciary.
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. Mr. Speaker, I thank the chairman for yielding me this
time.
I rise to relish this debate. It is precisely the type of issue that,
as I was a boy first falling in love with the Constitution of the
United States, as no doubt the gentleman from Washington (Mr. Baird)
did as well, I hoped some day to be a part of here.
I congratulate the distinguished gentleman from Washington State for
his passion on this issue, and I believe in his well-intentioned
efforts to address what is, unfortunately, an issue that this Congress
must continue to confront in the years ahead.
But with regard to House Joint Resolution 83, however well-
intentioned, Mr. Speaker, I would offer that it is nonetheless bad
policy.
When terrorists attacked America on September 11, I was here in the
Congress, and that very next day, I witnessed that it was an elected
Congress that responded in the wake of those attacks. Had the 107th
Congress been comprised of appointed officials, the legislation we
passed would not by definition have carried the same validity. The
truth is, it would hardly have been reassuring to the American people
immediately following a terrorist attack to see the faces of hundreds
of strangers running their government; and, gladly, it did not occur.
The Constitution could not be clearer on this point. Article I
states, ``The House of Representatives shall be composed of Members
chosen by the people of the several States,'' and that ``when vacancies
happen in the representation of any State, the executive authority
shall issue writs of elections to fill such vacancies.''
Of this point James Madison wrote in Federalist No. 52, ``As it is
essential to liberty that the government in general should have a
common interest with the people, so it is particularly essential that
the House should have an immediate dependence on and an intimate
sympathy with the people.''
Frequent elections are unquestionably the only policy by which a
dependence and sympathy for the people can be equally secured. In fact,
it would be Madison himself who in a speech years later would suggest
``a gradual abridgement of the right to suffrage or to elected
representation has been the mode in which aristocracies have been built
on the ruins of popular forms.''
That is not what we are about here today, nor would I imply it or
suggest it to my friends and colleagues. But I am here to say that this
business of the People's House being the exclusive province of the
national government where one must be elected by the people to serve is
a principle worth defending.
For that reason, despite my admiration for the gentleman from
Washington, I urge my colleagues to oppose this resolution inasmuch as
it does undermine the core principle that this place on this floor
should ever be the People's House.
Ms. LOFGREN. Mr. Speaker, I yield 3 minutes to the gentleman from New
York (Mr. Nadler), a distinguished member of the Committee on the
Judiciary and the ranking member of the subcommittee.
Mr. NADLER. Mr. Speaker, we are asked today to consider the most
serious question likely to come before the Congress: how to maintain
our government as a democratic representative government in the event
of a catastrophic terrorist attack. We must think carefully about the
unthinkable, and we must do it now while we have the opportunity to do
so.
Unfortunately, this proposed amendment is being brought up by the
Republican leadership under a closed rule, with 90 minutes of debate,
no hearing in the Committee on the Judiciary or in any committee of
this Congress. An alternative proposed by a Republican colleague from
California cannot even be debated under this rule. As the ranking
Democratic member of the Subcommittee on the Constitution, the
subcommittee with the responsibility to consider all proposed
constitutional amendments, I can tell my colleagues that this proposed
amendment has never been the subject of a hearing in this Congress.
Let me read what the Republican report on this bill says: ``No
hearings were held on H.J. Res. 83,'' period. We have found the time
for five hearings on same-sex marriage, and we have found the time to
consider a bill to declare the oak tree the official tree of the United
States. We have found time for hearings on flag burning but not on how
to prevent the destruction of our democratic institutions.
{time} 1630
We have found the time to consider a balanced budget constitutional
amendment, but no time to consider how to maintain the voice of the
American people in the consideration of taxing and spending measures.
These are the twisted priorities of this Republican leadership. How
do we protect our democracy in the event of a terrorist attack? Who
knows. I would like to know how we can protect our democracy right now.
Clearly an issue that is of the highest importance to the Nation, an
issue that should be nonpartisan is being handled in a partisan manner.
That is anti-democratic.
Is this amendment the right solution to a significant problem?
Perhaps. Frankly, I think it goes in the right direction. I have some
amendments to it that I would make, if they were in order, if we had
time to consider it. We ought to hold hearings.
This House passed a bill to guarantee elections in 45 days. Frankly,
I think that 45 days is too quickly. What do you do as a practical
matter, especially after a catastrophe, what do you do within those 45
days? I think that the best amendment would probably be something that
would be along the lines of this amendment that we are considering now,
but I think there ought to be a mandate that there be a special
election within a reasonable time period, not 45 days, but maybe 120,
180 days.
What is practical? I think there are other things. But the fact is
how do you determine when someone is incapacitated and when he is no
longer incapacitated? We ought to have serious hearings. We ought to
consider this properly. We ought to consider the gentleman from
California's (Mr. Rohrabacher) suggestions, my suggestions, other
people's suggestions. We ought to consider the suggestions of law
professors. We ought to do this right. This is a serious matter.
Instead, what we have done is take up the chairman's bill. Why?
Because he is the chairman. We do not consider anything else. We know
that many people think that that is not an adequate bill, but they did
not have proper hearings either. Now because of criticism, we are
taking up this bill with no amendments and no other considerations.
Frankly, the trouble that Members are having answering these
questions is because the Republican leadership will not allow the
proper minimal consideration of this issue. That is no way to protect
our democracy in these dangerous times.
I would urge that this bill should be sent back to the Committee on
the Judiciary. I will vote for it because it is the best thing we have
in front of us. We ought not to be in the position we are in.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself 2 minutes.
Mr. Speaker, I would like to respond to the complaints about the
process in the Committee on the Judiciary. It is true there were no
hearings on the amendment of the gentleman from Washington (Mr. Baird)
during this Congress. There was a hearing in the last Congress. There
was not very much support for the notion of appointing replacement
Members of the House of Representatives.
The gentleman from Washington (Mr. Baird) introduced House Joint
Resolution 83. Until the day it was reported by the Committee on the
Judiciary, it had no co-sponsors at all. Then there were two people who
added their names to the joint resolution, including the gentleman from
New York. There was
[[Page H3672]]
one amendment that was offered during the committee markup when the
resolution was open for amendment at any point, and it was subsequently
withdrawn.
When the Committee on Rules had its hearing last night, none of my
Democratic friends offered any amendments for the Committee on Rules to
consider. The gentleman from California (Mr. Rohrabacher) did offer an
amendment.
I would point out that on November 15, 1983, when the Democrats were
controlling the House, the House considered the Equal Rights Amendment,
a very important constitutional amendment under suspension of the rules
where there was only 40 minutes of debate and no amendments were
offered. Two-thirds vote was required under suspension, as it is for
constitutional amendments; and it was voted down.
But anybody who complains about this process where there is 90
minutes of debate, no amendments because it is a closed rule and,
except for the gentleman from California (Mr. Rohrabacher), nobody
offering any amendments, I think really ignores how the ERA was
considered 21 years ago.
Now, finally the gentleman from Washington (Mr. Baird) filed a
discharge petition. He wanted to bring the bill up out of the regular
order, without any hearings, and without any committee consideration.
What I did is there was a full markup at the committee where the
amendment was open for amendment at any point. There was a vote in the
committee. And the majority of the committee reported it out adversely.
So I think that anybody who says we need more hearings should not
have been on that discharge petition.
Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from Virginia
(Mr. Forbes), a member of the committee.
Mr. FORBES. Mr. Speaker, I rise today in strong opposition to House
Joint Resolution 83. I myself was elected to serve in the House of
Representatives 3 years ago this month in a special election when my
predecessor passed away. If my predecessor had been forced to make a
list of successors, would have I been on it? I do not know the answer
to that question. But I do know that it is unlikely that my
constituents would have wanted their representative decided for them in
any other manner than by election.
In a time of national emergency, the people I represent should have a
right to choose their next representative. To deny them this right
would be autocratic and unjust, no matter how well intentioned the
motive.
Today, Mr. Speaker, we are considering a powerful amendment that
could alter the very nature of our government. It would strip the voice
of the people at a time of national emergency, a time when the people's
voices are most necessary and most moving. Without elections, our
government becomes bureaucracy in action rather than democracy in
action. It is precisely at such a time in such an emergency that we
need to guard and defend the rights of our citizens to vote and not
yield to the temptation to absolve that right.
This bill undermines the legitimacy of the House of Representatives.
It is no accident that our Founders designed the House of
Representatives to be composed solely of elected representatives of the
people.
George Washington said: ``The preservation of the sacred fire of
liberty and the destiny of the republican model of government are
justly considered deeply, perhaps as finally, staked on the experiment
entrusted to the hands of the American people.''
Mr. Speaker, our experiment with democracy has worked. As a Nation we
have survived many national emergencies, disasters, and tragedies. We
are the oldest working democracy because we make it clear that power in
this government must remain with the people.
I urge my colleagues to vote against House Joint Resolution 83.
Ms. LOFGREN. Mr. Speaker, I yield 1 minute to the gentleman from
Arkansas (Mr. Snyder).
Mr. SNYDER. Mr. Speaker, I rise in opposition to H.J. Res. 83. And
for those Members who are undecided on how they are going to vote
today, I suggest two questions: First of all, have my colleagues read
this proposal? If they have not, please go to the computer, pull it up,
and read it. The language is confusing. It does not work. I do not
believe it accomplishes the purposes that the sponsors have set out for
us.
Today is not the day of the vote for this proposal. It is still in a
draft form and needs more work.
The second question, What does one consider to be the essence of
democracy? Is it continuity of government, or is it the right of a free
people to be represented by those people whom they elect? If one
believes in a seamless continuity, there has always been a way to do
that. We have had kings. The king is dead. Long live the king.
Succession just passes to the son or daughter.
This particular proposal says succession will pass to people who we
select. We die and the government will appoint one of those two people.
That, in my view, provides continuity, but it does not preserve what I
think is the essence of democracy, the right of a free people to be
represented by those whom they elect.
Finally, on the motion to recommit, which I believe is coming, the
language that I read, I believe it is the current draft, says that this
resolution will be sent back to committee for full hearings on this
resolution.
In the spirit of what has been said by the gentleman from New York
(Mr. Nadler) and others, I would hope that language would be modified
asking the committee chair to have hearings on all the proposals out
there.
Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentleman
from California (Mr. Dreier), the distinguished chairman of the
Committee on Rules.
(Mr. DREIER asked and was given permission to revise and extend his
remarks.)
Mr. DREIER. Mr. Speaker, I rise in strong opposition to this
legislation. Of course, it is well intended. We have all worked
together. The request was made of me that we have a chance to vote up
or down on this constitutional amendment. The gentleman from Wisconsin
(Mr. Sensenbrenner) and I worked this out.
Now the author of the amendment says it is flawed. We have the
ranking minority member of the Subcommittee on the Constitution saying
it is flawed. We have a proposal before us. It should be unanimous that
we vote ``no.'' It is a bad idea, and it should not be done.
The thing that troubles me is while I know that my colleagues would
like to ensure that there are elections, their proposal does, in fact,
provide the opportunity for appointed individuals to serve in the
House. There was a debate in 1787 on this very issue. Charles Pinckney,
as he discussed the issue of the first branch, talked about the fact
that Members of the House should be appointed. Why should they be
appointed? He said the people were less fit judges.
Now, I am not claiming that the people who are proponents of this
constitutional amendment believe that the people are less fit judges. I
am not claiming that they do not want to have elections. But I will say
that as we look at the debate in 1787, Madison, Mason, Dickerson and
other Framers, I think, got it right and concluded correctly with
Madison's quote when he said: ``The right of suffrage elections is
certainly one of the fundamental articles of democratic government. A
gradual abridgement of this right has been the mode in which
aristocracies have been built on the ruins of popular forms.''
I think it is very important for us to note that it was the James
Madison view that prevailed, ensuring that the people are elected when
they serve in the people's House. Remember, it was Federalist 53 when
Madison said: ``Where elections end, tyranny begins.''
This proposal would, in fact, have something take place before
elections. So I think that we have the opportunity with this amendment
before us to tragically move in the Pinckney direction, which did, in
fact, say that the people are less fit judges. And that is why I
believe it would be wrong for us to potentially have a totally
appointive government which we conceivably could have if this
constitutional amendment were to prevail. It is possible that we could
have an appointed President, Vice President, an entire United States
Senate and, with this proposal, appointed Members of the House. That is
why James Madison was
[[Page H3673]]
so careful, and that is why he was so correct in ensuring that at least
one entity could not serve, could not have any power unless it is
vested in them by the people.
Mr. Speaker, the author and other Members have now admitted that this
is flawed. The gentleman from Arkansas (Mr. Snyder) just came forward
having offered a proposal to the gentleman from Washington (Mr. Baird)
about making a modification, and he has come forward and said he would
like to have another proposal.
Well, we have gone through this for a long period of time, and as the
gentleman from Wisconsin (Mr. Sensenbrenner) has said, a hearing on the
constitutional amendment was, in fact, held in the last Congress. We
know what it consists of. A constitutional amendment consists of having
appointed, rather than elected, Members of the House. And the proposal
itself is flawed, as has been admitted.
That is why I encourage my colleagues in an overwhelming bipartisan
way, just as we in an overwhelming bipartisan way by a vote of 306 to
97 voted in favor of our expedited election legislation, we should come
together in the same way and vote down this ill conceived measure that
would fly in the face of the vision put forth, the inspired vision of
the Framers of our Constitution.
Ms. LOFGREN. Mr. Speaker, I yield 3 minutes to the gentleman from
Rhode Island (Mr. Langevin).
(Mr. LANGEVIN asked and was given permission to revise and extend his
remarks.)
Mr. LANGEVIN. Mr. Speaker, I rise today in strong support of this
measure and commend my good friend and colleague, the gentleman from
Washington (Mr. Baird), for his outstanding leadership on this critical
issue.
This important legislation would amend the Constitution to allow
temporary appointments to fill vacancies in the House only in the event
of a catastrophic attack. If we do not pass this legislation, Mr.
Speaker, we risk disenfranchising large portions of the country in a
time of national crisis or, worse, in the case of mass incapacitation
of Members preventing the House from even convening to conduct the
people's business.
Some Members will argue today that a constitutional amendment is not
necessary to address the problem of congressional continuity. While I
understand some of their concerns, I question whether Congress has
investigated the matter enough to even come to that conclusion.
The AEI Brookings Continuity of Government Commission after studying
the issue thoroughly endorsed a constitutional amendment even though
some members began the process undecided or opposed to that course of
action.
Mr. Speaker, others will note that the House already addressed this
matter by passing legislation in April to require expedited special
elections within 45 days.
{time} 1645
Well, Mr. Speaker, I would point out that in the 6 weeks after the
attacks of September 11, the Congress passed numerous pieces of
legislation authorizing, among other things, the use of military force,
an airline assistance measure, an economic stimulus bill, the Defense
Authorization Act, numerous appropriations bills, the farm bill, and
legislation pertaining to bioterrorism, victims assistance and
terrorism financing.
Well, Mr. Speaker, without a constitutional amendment to allow
temporary appointment after a disaster, the most important decision
that our body can make, the decision to declare war, could have been
made with a greatly diminished or unrepresentative House.
I am disappointed that we are being given only 90 minutes to debate
one of the most important topics that this Congress can address. I know
that other Members have proposed their own constitutional amendment to
address the issue of congressional continuity, and we deserve hearings
and discussion on those recommendations as well.
Mr. Speaker, it is our duty to prepare the legislative branch for any
kind of disaster; and this constitutional amendment is necessary to
ensure that the House will be able to continue its work even in the
worst circumstances. I urge my colleagues to support this legislation.
I congratulate the gentleman from Washington (Mr. Baird) for his
leadership and passion on this issue.
Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman
from California (Mr. Cox), the chairman of the House Republican Policy
Committee.
Mr. COX. Mr. Speaker, I thank the gentleman for yielding me time.
Mr. Speaker, I thank the author of this proposal before us. It was 2
years ago that the Speaker asked me, along with the gentleman from
Texas (Mr. Frost) as my co-chair, to chair the Continuity of Congress
Working Group that was a predecessor for the outstanding work that the
Committee on the Judiciary has done legislatively in subsequent years.
Our working group, which existed for over a year, took a first look
at these problems after the horrible events of September 11 shocked us
into realizing that it could happen, that the entire Congress or
virtually the entire Congress could be destroyed at once. This is a
problem for the House much more than it is for the Senate because, of
course, senators can be appointed. They can be replaced immediately.
The House cannot because we have, as you have heard throughout this
debate, since the inception of our country always been an elected body.
So the working group recommended a resolution that was adopted
unanimously by this House, urging the States to advance special
elections in the event of an emergency, to speed up that process. When
the States did not, except for California, respond to that resolution,
we passed the very thing here recently requiring that that take place.
We have also, as a result of the work of the Speaker's working group,
the bipartisan working group on continuity of Congress, seen a lot of
our recommendations brought into effect.
I want to commend the author of this proposal, the gentleman from
Washington (Mr. Baird), because he was one of the moving forces in
making sure that all of this happened.
We have completed the following: There is now a reformed House
resolution on expedited special elections. There is now a change that
we routinely employ to the concurrent adjournment resolution so that,
in the event of a catastrophe, we could reconvene in some other place
other than the Capitol. There is now an emergency recess rule so that
if the Speaker or whoever is presiding learns that there is an imminent
attack we can adjourn under our rules, and the Congress could reconvene
elsewhere under the proceeding reform.
There is a very important change in the way we account for vacancies
in the House that otherwise, if there were a lot of Members killed,
would prevent us from mustering a quorum. This change allows the
Speaker to announce the adjustment of the whole number of the House
upon notification of the death, resignation, or expulsion of a Member.
And the Speaker's announcement, importantly, is not subject to appeal.
We also have changed the rules for Speaker succession. Much in the
same way that the author of this proposal has suggested that we
repopulate the House, we have made sure that there will be a Speaker.
There is now going to be a list of Members who will succeed the Speaker
in the event of a vacancy in the office, and that Member will act in
this role until the House reconvenes in order to elect a new Speaker.
The challenges that are under debate today remain. We do not have a
national consensus. We cannot get two-thirds in the House and Senate.
We know that, but we are moving the process forward.
I will vote against this only because it is not perfect, but I
commend the gentleman for offering it.
Ms. LOFGREN. Mr. Speaker, I yield 2 minutes to the gentleman from
North Carolina (Mr. Watt), a distinguished member of the Committee on
the Judiciary.
Mr. WATT. Mr. Speaker, I thank the gentlewoman for yielding me time.
Mr. Speaker, I voted for H.R. 2844, the expedited election procedure
which provides that States should try to have expedited elections in
the event of a catastrophe within 45 days.
I voted for that measure because I thought it was better than
nothing,
[[Page H3674]]
and prior to that we did not have a process in place. I voted for it
because, on a motion to recommit, the opposing side, the Republican
side, decided that they would accept the motion to recommit to at least
make whatever State procedures were in place subject to the civil
rights laws of our country and other voting rights laws.
H.R. 2844 provided a transition position that will expedite an
election within 45 days, but I still think that there is a need to have
a debate about whether there ought to be a different process for
replacing Members in the event of a catastrophe in a shorter time
frame, and I am satisfied that the only way that that can happen would
be through a constitutional amendment.
I am probably the least likely person to be supporting a
constitutional amendment, and I rise today neither in support of nor in
opposition to H.J. Res. 83, the proposed constitutional amendment that
the gentleman from Washington (Mr. Baird) has offered. What I am
disappointed about is that we have taken this very weighty national
issue and turned it into what has essentially become a partisan issue,
a political issue; and we have used this opportunity, instead of as an
opportunity to hear from the people and to try to form a consensus
about what should happen under these circumstances, to basically one-up
the other side. Let me rush this thing to the floor without any real
debate.
I think the sad thing today really is that we have not had an
opportunity to review and study and have hearings on either the Baird
proposal or a number of other proposals that are out there that cry out
for hearings and the kind of debate that we believe are necessary and
that the public deserves.
Mr. SENSENBRENNER. Mr. Speaker, I yield 2\1/2\ minutes to the
gentleman from Florida (Mr. Feeney).
Mr. FEENEY. Mr. Speaker, I thank the chairman of the Committee on the
Judiciary for yielding me time; and I appreciate his leadership on this
issue.
I rise to note a couple of important points. I would start with the
proposition that Lord Churchill pointed out, and that is that democracy
is the worst form of government, except for all the others. It is an
inconvenient form of government even at the best of times, but the
gentleman just spoke and suggested that we need to have more debate
about how the People's House should have its representatives selected.
The truth of the matter is, from the inception of our Republic we
have had that great debate and our Founding Fathers have solved that
debate for us. They have told us that the People's House need to be
elected by the people.
Speaking of the inconvenience of democracy, George Mason during that
great debate suggested that ``whatever inconvenience may attend the
democratic principle, it must actuate one part of government.'' By the
way, that is us. He continued, ``It is the only security for the rights
of the people.''
Mr. Speaker, I would suggest to you that doing away temporarily with
democracy is something that a lot of aspiring democracies in third
world countries have done, and temporary turns out to be a long time
and sometimes forever. The worst thing that we can do is to throw out
our traditions because we are having a serious crisis.
It is a shame that a great, honorable debate about how we continue
the traditions our Founding Fathers gave this great House, the People's
House, always elected by the people of the various States, it is a
shame that it has descended into sort of a partisan roughhouse here
because that certainly is inappropriate. But I would point out that the
Democratic party, big D, is being very undemocratic, small d, in this
debate. The Republican party is being very, small r, republican during
this debate because it is the Republic that our Founders gave us that
we are trying to defend, especially as it relates to article 1 and how
the people of this House, that represent all of the citizens of the
United States, are selected.
I would end up by stating that James Madison, the prime author of our
Constitution itself, suggested he ``considered the popular election of
one branch of national legislature an essential plan of every free
government.''
Mr. Speaker, I would ask every Member of the House to support
Madison's version, our version, of a free government, defend elections,
and do not do away with elections temporarily or ever.
Ms. LOFGREN. Mr. Speaker, I yield 3\3/4\ minutes to the gentleman
from California (Mr. Rohrabacher).
Mr. ROHRABACHER. Mr. Speaker, I rise in support of H.J. Res. 83. I
support this constitutional amendment not because I believe this is the
best proposal or a perfect proposal but because I believe we need a
constitutional amendment to assure the continuity of Congress, and the
Baird proposal is the only option that we have been allowed to vote on.
I agree with the gentleman from Washington (Mr. Baird) that this
subject deserves better treatment than it has gotten so far, and I will
be voting for his motion to recommit with instructions to the Committee
on the Judiciary to hold hearings on several proposals.
One of those proposals, House Joint Resolution 92, is mine. I asked
the Committee on Rules yesterday to make my proposal in order as a
substitute and was turned down. So I am taking this opportunity to
explain my substitute to our fellow colleagues today.
My amendment would provide for a temporary acting successor,
actually, a choice of five in case any of us become deceased or
incapacitated. That would go for senators as well. I want to stress
this point because there has been some misunderstanding. What we are
talking about is the proposal on the floor today or my own proposal.
The debate is not whether or not a seat should be filled by an elected
representative. We keep hearing that. No. Elected representatives are
certainly the best option to go whenever you have that opportunity.
The choice that we are talking about today is whether the death or
incapacitation of a representative or a senator should result in a
State or district going unrepresented for months or whether
representation should be continued during this period by someone who
has been appointed or been selected by us, by those of us who were
elected, and that selection is made known to the voters prior to the
selection so that the voters will approve not only the representative
or senator but the choice of an alternative in case that senator or
representative becomes incapacitated or killed.
We are not talking about not having an elected official or elected
officials here. That is a bogus argument. I am sorry. We are talking
about the 45 days in which, before there would be a special election,
whether or not that our country will remain vulnerable because we do
not have people representing the people of the United States or, in my
proposal, whether or not during those 45 days the American people will
have a chance to vote for an alternative when they vote for us to get
us elected in the first place.
{time} 1700
This makes all the sense in the world. We elect a Vice President of
the United States that way right now. Is that to say if the President
is incapacitated or dies that we have someone who is unelected when the
Vice President steps up? No. He is elected even though his name is not
on the ballot.
There is no reason why we should not have this in the legislative
part of the government as well as the executive. This goes to the heart
of whether or not we are going to be prepared for an emergency.
Let me note that on September 11, when we were in our desperate
situation, I remember when we met on the steps, the gentleman from
Washington (Mr. Baird) and I, I grabbed him and said, look, we have got
to sing ``God Bless America'' right now because the American people
need this. We are in a crisis, and they need this.
Today, the American people need a constitutional amendment to come to
grips with this challenge that terrorism threatens to bring upon us. We
need to make sure we are ready in case of an emergency. The Republican
proposal is to leave us totally at risk for 45 days. That is
ridiculous. Let us amend the Constitution and take care of this
problem, and the people's right to vote will be taken care of as well.
Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentleman
from Texas (Mr. Smith) a member of the Committee on the Judiciary.
[[Page H3675]]
Mr. SMITH of Texas. Mr. Speaker, first of all, I would like to thank
the chairman of the Committee on the Judiciary for yielding me time.
Mr. Speaker, Article I, section 2 of the Constitution states as
follows: ``The House of Representatives shall be composed of Members
chosen by the People of the several States. When vacancies happen in
the Representation from any State, the Executive Authority thereof
shall issue Writs of Election to fill such vacancies.''
The Constitution emphasizes the right of the people to govern
themselves through their elected representatives. We should not ignore
that Constitution.
However, the constitutional amendment we are considering today would
create unelected representatives. It would have vacancies during a
disaster filled by appointees.
The House already has passed H.R. 2844, introduced by the gentleman
from Wisconsin (Mr. Sensenbrenner), which passed by a three to one
margin. It requires special elections to occur within 45 days of a
disaster that kills more than 100 Members of Congress.
While some wonder how the government would operate while we are
waiting for those elections, there is a House rule that provides that a
quorum shall consist of all Members who are living. During a time of
disaster when many Members have died, the Speaker can adjust the
required quorum to reflect the number of Members still living.
On the other hand, by law, Senate vacancies are filled by the
governor of the affected State. So if a significant number of House and
Senate Members were killed during an attack and if House Members were
appointed as well, as this constitutional amendment we are considering
describes, we would then have a Congress of mostly unelected officials.
That is another reason we must preserve the right of the American
people to have elected representatives in the House.
Some claim that a constitutional amendment providing for the
immediate appointment of representatives is necessary for a government
to function, but Congress has granted the President significant powers
to act during a national emergency. Congress could utilize that reduced
quorum until elections are held.
Mr. Speaker, any constitutional amendment that would deprive the
American people of the right to elect their representatives should be
defeated. Democracy is always better than bureaucracy.
Ms. LOFGREN. Mr. Speaker, I yield 4 minutes to the gentleman from
Washington (Mr. Baird), the author of the amendment.
Mr. BAIRD. Mr. Speaker, I thank the gentlewoman from California for
the time.
I would just note that it was my distinguished colleague from Texas
who, when we were given the opportunity, my colleague was asked for
unanimous consent in the Committee on the Judiciary hearing to let me
speak to my own bill. It was a UC request. All it needed was one member
of their body to speak up and say no, and it was the gentleman from
Texas.
On the one hand, the opponents of this legislation argue that we must
have elected representatives. On the other hand, they suppress the
rights of those elected representatives to speak to their own
legislation.
Our 90 minutes are about up. I want to take a little bit of time, if
I may, to thank the gentleman from Texas (Mr. Frost) and the gentleman
from California (Mr. Cox) for their outstanding work on the Working
Group. I would like to commend the gentleman from Connecticut (Mr.
Larson); the gentleman from California (Mr. Rohrabacher) for his
intelligent and thoughtful comments; the gentleman from Rhode Island
(Mr. Langevin); the gentlewoman from California (Ms. Lofgren) for her
leadership on this issue, the gentleman from California (Mr. Sherman)
for his work on presidential succession matters.
I would also like to commend the work of the Continuity of Government
Commission. We have spent 90 minutes on this issue today. The
Continuity of Government Commission spent virtually a year on the
matter. All of the members of that commission began saying we should
not amend the Constitution, much like my friends on the other side
have. Yet, to a person, they agreed at the end that we need to or we
will be without the checks and balances so fundamental to our great
Republic.
I also want to thank the opponents of this bill, the chairmen of the
various committees. I also want to thank the ranking members.
The discussion today I think makes the proposal we will end up with a
stronger proposal. That is part of the crucible of this institution. My
fear, however, is that that crucible itself is in jeopardy. There will
be silence on this floor if we perish or there will be chaos and
discord as partisan rancor evolves in the aftermath when this lack of
constitutional clarity emerges.
People have said what the American people would want, my friends on
the other side. One of the things we do far too seldom here is go back
to the people themselves and ask them. I would invite my colleagues to
do as I have. Hold some town halls, go to some Rotaries or Kiwanis or
Lions or whatever group you want and give it a fair question. Say here
is the choice, a fair and balanced question. Say do you want in the
aftermath of a crisis, do you believe we should have temporary
appointments, nominated by the people you most recently elected and
thereby are most likely of the same party and political ideology or
would you have complete vacancy for 45, possibly 75 days? Ask them and
see what they say. Ask them.
If my colleagues can come back to me and say that the people I talked
to would say we would rather have no voice in Congress as our Nation
goes to war and my sons and daughters are committed to a conflict, we
would have no voice in Congress as our civil rights are usurped, we
would like to have no voice in Congress as someone accedes to the
presidency who was never elected but who was, in fact, themselves
appointed, ask them, and I believe with great confidence they will tell
my colleagues we would like a voice imperfect, indirect though that
voice may be if unelected. At least they were appointed by the person
most recently elected. At least the political makeup of this great body
will be preserved. At least some of the most consequential decisions in
the history of this country will be made under a model of checks and
balances that, yes, Mr. Madison and Mr. Jefferson and Mr. Mason and the
rest of the Founders found so essential.
Elections are sacred, but so, too, is representation. I would urge my
colleagues to vote yes on the motion to recommit. Let us have a full
and fair debate in the committee and bring back a still better bill.
Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman
from Georgia (Mr. Linder), a member of the Committee on Rules.
(Mr. LINDER asked and was given permission to revise and extend his
remarks.)
Mr. LINDER. Mr. Speaker, I thank the chairman for yielding this time,
and I rise in opposition to the underlying resolution.
I will agree with the argument that the Founders could not have
envisioned airliners being used as missiles against skyscrapers, or
even the U.S. Capitol. I do not, however, subscribe to the theory that
the Founders were unable to envision in their minds a terrorist attack
with the ability to take the lives of Members of Congress en masse.
On November 5, 1605, 13 co-conspirators placed 36 barrels of
gunpowder in a cellar beneath the British House of Lords with the
intent of destroying the entire British parliament and killing King
James I, who was charged with convening the legislative body on that
day. Only through an anonymous letter and the quick action of a few
members of Parliament was a British soldier named Guy Fawkes arrested
minutes before he was to light a fuse that was designed to spur a
revolution in England.
My point is that the Founders were cognizant that a terrorist attack
on the government resulting in the deaths of scores of Members of
Congress could occur. The Founders drew a great deal of our
constitutionally-formed system of government from the British
parliamentary system and English common law. They were perhaps the
greatest political thinkers in history. Yet, despite this knowledge of
British history and clear references in the Federalist Papers to the
dangers of any effort that would deny the right of elected
representation, there are those who
[[Page H3676]]
have argued today under the assumption that the Founders never
contemplated such a situation.
Despite knowing that a surprising and devastating attack could befall
this government, the Founders were adamant in their belief that under
no circumstances were Members of the House to be selected by any means
other than popular elections. Elections are the key events that connect
the American people to their government, and these elections have a
legitimacy no appointment process ever could.
Although we can all agree that an attack on this body would threaten
the fabric of this country, that same fear should not drive us to
weaken the very foundations upon which this Congress, as the Federal
government's legislative branch, operates.
Federalist No. 52 says it best: ``the right of suffrage is very
justly regarded as a fundamental article of republican government. To
have submitted it to the discretion of the states would have been
improper . . . for the additional reason that it would have rendered
too dependent on the State governments that branch of the Federal
government which ought to be dependent on the people alone.''
In addition, I am concerned that the constitutional amendment before
us today would not only override H.R. 2844, which already passed the
House by an overwhelming vote of 306-97, but it would remove the
Congressional authority to expedite special elections in emergencies
under its existing Article I, Section 4, clause 1 authority. H.R. 2844,
as passed by the House, is designed to ensure that the House can be
repopulated by legitimate democratic means within 45 days after an
attack causes multiple vacancies in the House.
The proposed constitutional amendment also includes a provision that
states that ``Congress may by law establish the criteria for
determining whether a Member of the House of Representatives or Senate
is dead or incapacitated . . .'' I am quite concerned that this
particular provision would deny the House its existing authority to
address incapacitation by House Rules. This is an authority the House
Rules Committee is already exercising. The provision of the
constitutional amendment needlessly involves the Senate in how the
House operates. By doing so, it would unfortunately make addressing
continuity in government more difficult than it already is.
Mr. Speaker, and I continue to believe that government should
neither exist nor change but with the express will of the people by
whom and for whom it is created. I am hopeful that the prevailing will
of this body will reflect that of our nation's Founding Fathers and
will ultimately preserve its own popularly-elected nature by defeating
this resolution.
With that Mr. Speaker, I urge my colleagues in the House to join me
in voting against this resolution.
Ms. LOFGREN. Mr. Speaker, I yield 10 seconds to the gentleman from
Washington (Mr. Baird) to make a correction.
Mr. BAIRD. Mr. Speaker, I apparently misspoke earlier when I
mentioned it was the gentleman from Texas (Mr. Smith) who expressed
objection to my opportunity to speak in the Committee on the Judiciary.
I regret that. There was a member of the majority. I thought it came
from the gentleman from Texas (Mr. Smith). I apparently was in error,
and I apologize for the mistake.
Ms. LOFGREN. Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman
from Virginia (Mr. Goodlatte), a member of the Committee on the
Judiciary when he is not busy as chairman of the Committee on
Agriculture.
Mr. GOODLATTE. Mr. Speaker, I rise in opposition to this resolution.
On April 22 of this year the House, overwhelmingly passed H.R. 2844
by a vote of 306 to 97, a measure introduced by the gentleman from
Wisconsin (Mr. Sensenbrenner), the chairman of the Committee on the
Judiciary, which would provide for the continuation of the House of
Representatives in the event of a catastrophic loss of Members of the
House. This legislation would also ensure that each Member of the House
is elected, just as our Constitution mandates. Ensuring the election of
Members of the House is the right approach for structuring legislation
to provide for the continuity of government.
The direct election of Members of this body by the people is a
fundamental principle established by the Founders of our Constitution.
Specifically, the U.S. Constitution states, ``The House of
Representatives shall be composed of Members chosen by the people of
the several States. When vacancies happen in the Representation from
any State, the Executive Authority thereof shall issue Writs of
Election to fill such vacancies.''
This was not what the Constitution provided for the other body, and
ever after we have been known as the People's House. That principle
would be severely eroded with the adoption of this resolution.
Congress has a duty to set forth procedures to ensure that the
government continues to function in the event of a catastrophe.
However, Congress also has a duty to protect the direct link to the
people that has always characterized the House of Representatives.
Especially during the aftermath of a catastrophic event, it is
important that we prevent the possibility that the government could
consist only of unelected officials.
I have some serious concerns about House Joint Resolution 83.
Specifically, I am deeply concerned about the idea that every Member of
this House would designate two or more other people to effectively
shadow Members of Congress under somewhat secretive circumstances. I am
also concerned that if one of these officials were appointed to
Congress then that person would have an inherent advantage over anyone
else in the subsequent election by reason of the implicit endorsement
by the former Member of Congress. This provision would chip away at the
premise that the people and only the people should have the authority
to determine who their representative should be.
For these reasons, I urge the opposition of this resolution and urge
Members of the House to vote no on House Joint Resolution 83.
Ms. LOFGREN. Mr. Speaker, I reserve my time.
Mr. SENSENBRENNER. Mr. Speaker, I am prepared to close debate if the
gentlewoman from California will do so first.
Ms. LOFGREN. Certainly.
The SPEAKER pro tempore (Mr. Simpson). The gentlewoman from
California (Ms. Lofgren) is recognized for 4 minutes.
Ms. LOFGREN. Mr. Speaker, I yield myself such time as I may consume.
I think it is important that we have hearings in the Committee on the
Judiciary to examine this subject matter. Several speakers have
suggested that to have a constitutional amendment to provide for the
temporary replacement of Members of the House so that we could have a
Congress that acts before elections can be held would be the end of
democracy. I think that we need to come to grips with the fact that if
they kill us all, we have some bad choices. Here they are.
{time} 1715
We can have an appointed government, because there is a line of
succession to the Presidency, in the Senate there is a provision in the
Constitution for their appointment, and no House of Representatives,
which means that the appointed President would assume dictatorial
powers. Or we could have a constitutional amendment that allows for the
temporary appointment of Members of the House until special elections
can be held so that the House is made up of elected representatives. I
think those are the choices that face us.
Now, the American Enterprise Institute did a good thing. They put
together a commission that looked at this whole issue, and here is what
they said in their report: ``While some protections,'' they say,
``exist for reconstituting the Presidency, Congress would have a far
more difficult time. It might not function well or at all. Ensuring the
continuity of Congress is now a more pressing need than at any previous
time in our history. According to two of the 9/11 plotters, the fourth
plane that crashed in Pennsylvania was headed for the Capitol, and it
is entirely conceivable the Congress will again be a target.''
It is interesting that although we have proceeded on pretty much a
party-line basis in the discussion of this matter, not completely but
almost completely, and it was certainly a party-line vote in the House
Committee on the Judiciary, the commission itself was very bipartisan.
The honorary cochairmen were President Jimmy Carter and President
Gerald Ford. The cochairmen were Lloyd Cutler and former Senator Alan
Simpson.
[[Page H3677]]
Tom Foley, the former Speaker, and Newt Gingrich, the former Speaker,
who did not agree on a lot, agreed on this. Further, Bob Michel, who
was the minority leader for so many years and is so well regarded,
served on this commission with Leon Panetta, and they agreed as well
that what we need is a constitutional amendment.
The alternatives to a constitutional amendment do not solve the
problems of mass vacancy. They have a chapter indicating why special
elections are helpful but not sufficient, and here is what they say:
``The President would act without a check, extra constitutionally in
some cases, until Congress reconstituted itself. In addition, there is
a possibility that a Congress of greatly reduced size would act, and
that the vast majority of Americans could view this Congress as
illegitimate. Shorter election cycles would not eliminate any of these
problems but only slightly shorten their duration.''
They point out that ``clarifying the quorum requirement is not a
solution.'' And they say, ``While the commission sees the value of
clarifying the interpretation of the quorum requirement, it does not
believe that making the requirement more lenient will ensure the
constitutional continuity of Congress. Quite the opposite. A lenient
quorum requirement might result in a small number of Members acting as
the whole Congress and calling into question the legitimacy of
congressional actions. The commission does favor a clarification of the
quorum requirement, but not as a substitute for the constitutional
amendment.''
Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, we have debated this constitutional amendment for almost
an hour and a half now. I think that the issue is very clear, and that
is whether the House should maintain its function as a House that no
one enters without first being chosen by the people, or whether there
should be some procedure for the appointment of Members of the House
should there be a catastrophe.
This is a philosophical difference, and it is a philosophical
difference that no amount of hearings will be able to bridge. Maybe
this constitutional amendment is improperly drafted, maybe it is not;
but the thrust of the constitutional amendment is to allow the
appointment of Members of the House of Representatives to act,
supposedly in the people's name, when there is a national catastrophe
of unspeakable proportions. Any action by appointed officials will lack
the legitimacy of action by elected officials, and that is why I think
it is important to reconstitute the House with people who come to
Congress with a mandate from the people should there be a disaster that
wipes out most of our government.
Now, let us look at what House Joint Resolution 83 proposes to do. It
says that prior to taking the oath of office, every Member elected to
the House shall designate at least two temporary successors and will
send that list to the Governor.
Now, during a campaign, when candidates are running against each
other, there is no way that candidates will be able to avoid telling
the press and the public who they will name as temporary successors.
And that would be a distraction that would take away from the issue of
choosing a representative in Congress who, hopefully, will serve for
the full 2-year term. And all kinds of extraneous issues, such as how
much the temporary successor designee contributed or whether they have
special interests and things like that, will end up becoming an
ancillary, but very important, issue in the campaign and take the
campaign's focus away from the issues that the candidates espouse in
their platforms. And that would not be good for democracy at all.
Now, it puzzles me greatly that people who have said how important it
is that we deal with this issue and deal with it properly are now
attacking the Committee on the Judiciary and asking for a delay. On
October 23 of last year, the author of this amendment, the gentleman
from Washington (Mr. Baird), said ``The more urgent matter is to put
the measure before the body.'' That is what is being done today, yet
now I hear him and others saying, well, we need more hearings.
Well, Mr. Speaker, more hearings will just continue the debate on
whether or not there should be appointed temporary successors or the
House should maintain its tradition constitutionally of being entirely
comprised of people who are elected by the voters of the various
States.
The Continuity in Government Commission's report, which endorses
appointed representatives, says ``The exact details of a solution are
less important than that the problem be addressed seriously and
expeditiously.'' Today we are debating that issue. We ought to send a
clear message on whether this House wants to have temporary successors
appointed, which will only be done by a constitutional amendment, or
whether we want to continue our tradition of having people who come
here to be elected.
I urge that the motion to recommit be voted down and that the
amendment be voted down so we can show the people of America and the
world what this House stands for and what it stands against. I ask for
a ``no'' vote on the motion to recommit and a ``no'' vote on the
constitutional amendment.
Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Simpson). Pursuant to House Resolution
657, the joint resolution is considered as having been read for
amendment and the previous question is ordered.
The question is on the engrossment and third reading of the joint
resolution.
The joint resolution was ordered to be engrossed and read a third
time, and was read a third time.
Motion to Recommit Offered by Ms. Lofgren
Ms. LOFGREN. Mr. Speaker, I offer a motion to recommit with
instructions.
The SPEAKER pro tempore. Is the gentlewoman opposed to the joint
resolution?
Ms. LOFGREN. I am.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Ms. Lofgren moves to recommit the joint resolution H.J.
Res. 83 to the Committee on the Judiciary with instructions
to conduct hearings on the subject matter of the joint
resolution.
The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from
California (Ms. Lofgren) is recognized for 5 minutes in support of her
motion.
Ms. LOFGREN. Mr. Speaker, in the 45 days after September 11, this
House first met to show the American people that their Congress was
still intact, and then we went to work.
On September 13, we provided for the expedited payment for public
safety officers who were killed or suffered catastrophic injury; we
passed on September 13 the Victims of Terrorism Relief Act, the
Emergency Supplemental Appropriations Act; on September 14 we
authorized the United States Armed Forces to take action against those
responsible for the attacks; we adopted the Air Transportation Safety
and Stabilization Act; we made appropriations; we adopted bills to
combat terrorism and adopted the Financial Anti-terrorism Act, the
Bioterrorism Enforcement Act, and the list goes on and on.
Those were important activities. And if there were no Congress, those
either could not have occurred or the executive would have had to
assume the legislative authority that is by Constitution vested with
the Congress. And as has been stated before, the Congress cannot exist
unless the House of Representatives exists.
Now, we know that the temporary appointments can only be made if we
are to change the Constitution. And although some think this is a bad
idea, what we are asking is that we have a thorough study of this whole
subject in the committee of jurisdiction in the House Committee on the
Judiciary.
There are many issues that we need to discuss. There are, as the
commission pointed out, several approaches that can be made, a broad
approach that delegates to the Congress the ability to provide for
replacements by statute, or a prescriptive approach similar to the one
promoted by the gentleman from Washington (Mr. Baird).
What is incapacitated? How do we define that? If there is an
appointment, is that person eligible to run for reelection? And if they
are serving because of incapacity, will they be replaced when the
incapacitated Member resumes their abilities? Who would do the
appointments: the courts? the Member?
[[Page H3678]]
the governor? the legislature of each State? These are many questions
that need to be answered, and all of them should be studied.
Mr. Speaker, I yield 2 minutes to the gentleman from Washington (Mr.
Baird), the author of the amendment.
Mr. BAIRD. Mr. Speaker, I thank the gentlewoman from California for
yielding me this time.
The reason I think we need to recommit this bill, and it is rare, I
think, for an individual who has authored a bill to suggest a motion to
recommit, because when I called for the discharge petition to bring
this bill to the floor, it was not just this bill. I wanted to bring
many different approaches so we could fully discuss it.
The fundamental question I would urge the chairman of the Committee
on the Judiciary and its members and this body as a whole to consider
is this: it is a fine thing to defeat this legislation, and I respect
the judgments of the people who may choose to do so, but you have yet
today, or in the prior discussion of the chairman's own bill, answered
the question satisfactorily for the American people as to what happens
during the 45 or 75 days. People continue to say, no one should ever
serve in the House who was not elected. We would all prefer that that
be the case. But you have never said clearly and unambiguously, with
clear-cut constitutional justification, how our government runs without
a House of Representatives. You have yet to do so. You have offered
pleasantries, reassuring promises; but you have never said how the
country runs.
Madison did want the representatives to be elected, but he wanted
there to be representatives. The people back home want to have
representatives. Who will choose to send your kids to war? Who will
choose to protect your civil rights? Maybe you can just rely on someone
you do not know, an unelected representative whom you do not know.
Maybe you can rely on that. And if they send your kid to war wrongly or
usurp your civil rights, you can take great reassurance that 75 days
later you can impeach them, assuming that one of their actions in the
interim has not been to somehow reduce your right to do that.
You are rolling the dice, my friends. You are rolling the dice, and
you have not yet put in place a solution. Mine may not be perfect, it
is not; but let us, please, have an opportunity to revisit this issue
and answer that question.
Ms. LOFGREN. Mr. Speaker, I would ask only that we approach this on a
bipartisan basis in the committee. We should hold hands and work on
this as a team, not fighting each other on party-line votes.
Mr. SENSENBRENNER. Mr. Speaker, I rise in opposition to the motion to
recommit.
Mr. Speaker, passing this motion to recommit will not serve to do
anything but to continue a debate that has gone on for almost 45 years.
In 1960, the Senate passed an amendment to allow for the appointment of
House Members.
{time} 1730
It was never voted on in the House of Representatives, and that was
during the height of the Cold War when everybody was afraid that the
Soviet Union would unleash a missile or massive numbers of bombers, and
if we did not make it down to the bunker at the Greenbriar in West
Virginia, the entire Congress would be wiped out. That was a crisis
time, and the Congress did the right thing: It ignored what the Senate
did in terms of appointment of House Members.
Sending this resolution back to committee is not going to change
anybody's mind on whether replacement House Members should be appointed
or elected. We ought to hit this issue directly on the nose and vote on
the amendment after defeating the motion to recommit.
Now I am again very puzzled by the fact that many of the proponents
of this amendment, including the Commission on Continuity in
Government, and their spokesperson is Norman Ornstein of the American
Enterprise Institute, have said that the problem should be addressed
seriously and expeditiously. This is what we are doing today.
And the author of the resolution, who now wants to have more
hearings, told Roll Call on October 23, 2003, that the more urgent
matter is to put the measure before the body. The measure is before the
body today. We ought to vote down the motion to recommit. We ought to
have a clear vote on whether Members want to have temporary successors
appointed or to preserve Madison's principle of having the People's
House be elected by the people. It is time to stand up and be counted,
not to have more hearings on the subject. Vote no on the motion to
recommit and vote no on the joint resolution.
Mr. PAUL. Mr. Speaker, I rise in opposition to H.J. Res. 83, which
amends the United States Constitution to allow appointed persons to
fill vacancies in the House of Representatives in the event of an
emergency. Since the Continuity of Government (COG) Commission first
proposed altering our system of government by allowing appointed
Members to serve in this body. I, along with other Members of Congress,
journalists, academics, and policy experts, have expressed concerns
that having appointed Members serve in the House of Representatives is
inconsistent with the House's historic function as the branch of
Congress most directly accountable to the people.
Even with the direct election of Senators, the fact that Members of
the House are elected every 2 years while Senators run for statewide
office every 6 years means that Members of the House of Representatives
are still more accountable to the people than are members of any other
part of the Federal government. Appointed Members of Congress simply
cannot be truly representative. James Madison and Alexander Hamilton
eloquently made this point in Federalists 52: ``As it is essential to
liberty that the government in general should have a common interest
with the people, so it is particularly essential that the branch of it
under consideration should have an immediate dependence on, and an
intimate sympathy with, the people. Frequent elections are
unquestionably the only policy by which this dependence and sympathy
can be effectually secured.''
Mr. Speaker, there are those who say that the power of appointment is
necessary in order to preserve checks and balances and thus prevent an
abuse of executive power. Of course, I agree that it is very important
to carefully guard our Constitutional liberties in times of crisis, and
that an over-centralization of power in the executive branch is one of
the most serious dangers to that liberty. However, Mr. Speaker, during
a time of crisis it is all the more important to have representatives
accountable to the people making the laws. Otherwise, the citizenry has
not check on the inevitable tendency of government to infringe on the
people's liberties at such a time. I would remind my colleagues that
the only reason we are reexamining provisions of the PATRIOT Act is
because of public concerns that this act gives up excessive liberty for
a phantom security. Appointed officials would not be as responsive to
public concerns.
Supporters of this plan claim that the appointment power will be
necessary in the event of an emergency and that the appointed
representatives will only serve for a limited time. However, the laws
passed by these ``temporary'' representatives will be permanent.
Mr. Speaker, this country has faced the possibility of threats to the
continuity of this body several times throughout our history, yet no
one suggested removing the people's right to vote for Members of the
House of Representatives. For example, when the British attacked the
city of Washington in the War of 1812 nobody suggested the States could
not address the lack of a quorum in the House of Representatives though
elections. During the Civil War, Virginia which borders Washington, DC,
and where today many Capitol Hill staffers reside and Members stay when
Congress is in session, was actively involved in hostilities against
the United States Government, yet President Abraham Lincoln never
suggested that non-elected persons serve in the House.
Adopting any of the proposals to deny the people the ability to
choose their own representatives would let the terrorists know that
they can succeed in altering our republican institutions. I hope all my
colleagues who are considering supporting H.J. Res. 83 will question
the wisdom of handing terrorists a victory over republican government.
The Constitution already provides the framework for Congress to
function after a catastrophic event. Article I Section 2 grants the
governors of the various States authority to hold special elections to
fill vacancies in the House of Representatives. Article I Section 4
gives Congress the authority to designate the time, manner, and place
of such special elections if states should fail to act expeditiously
following a national emergency. As Hamilton explains in Federalist 59,
the ``time, place, and manner'' clause was specifically designed to
address the kind of extraordinary circumstances imagined by the
supporters of H.J. Res. 83. Hamilton characterized authority over
Federal elections as shared between the
[[Page H3679]]
States and Congress, with neither being able to control the process
entirely.
Last month, this body fulfilled its Constitutional duty by passing
H.R. 2844, the Continuity of Representation Act. H.R. 2844 exercises
Congress's power to regulate the time, place, and manner of elections
by requiring the holding of special elections within 45 days after the
Speaker or acting Speaker declares 100 or more Members of the House
have been killed. This proposal protects the people's right to choose
their representatives at the time when such a right may be most
important, while ensuring continuity of the legislative branch.
In conclusion, I call upon my colleges to reject H.J. Res. 83, since
it alters the Constitution to deny the people's right to elect their
representatives at a time when having elected representation may be
most crucial.
Mr. HOLT. Mr. Speaker, I rise in opposition of this amendment.
The Founding Fathers designed the House of Representatives to
guarantee the preferences and will of the people was represented. They
included provisions in the Constitution, such as a 2-year term of
office and requiring that vacancies be filled in all events by a
special election, to ensure that the Members serving in this Chamber
would be held directly accountable to the people.
Although the 17th amendment expanded this ideal of representation by
requiring Senators to be directly elected by citizens of their State,
it still permitted the use of appointments to fill vacancies.
Therefore, the unique nature of the House of Representatives remained
intact and to this day no Member has ever entered this body except by
the mandate and popular vote of his or her constituents.
The stark realities of the 21st century, where terrorists seek to
destroy our Nation and the incapacitation of a large portion of this
Chamber is no longer inconceivable, require us to reexamine the
continuity of our government. However, I believe that even in a
terrorist attack or other catastrophe enough Members would survive to
conduct the business of the Congress. The small probability that no
Members would survive to serve does not warrant amending the
Constitution to circumvent the electoral process. Suffrage is
fundamental to the success of our democracy, and it must be protected
even in times of crisis and uncertainty.
I urge my colleagues to vote against this amendment.
Mr. LARSON of Connecticut. Mr. Speaker, I rise today in support of
the efforts of our colleague Representative Brian Baird to secure House
consideration of the issue of amending the Constitution of the United
States to ensure the continuity of Congress. I had hoped for hearings
on this critical issue in the Judiciary Committee, followed by
``regular order'', and I had hoped for consideration of a number of
Constitutional amendments sponsored by Members of the House, including
H.J. Res. 89, which I introduced. One subcommittee hearing conducted 2
years ago does not really do this subject justice.
Many Members were looking for an opportunity to use the normal
legislative process to develop and perfect their proposals regarding
the continuity of the House, relying on the collective wisdom of the
Members, and input from constituents. Such a discussion could have
helped to educate both Members and the public on the importance of a
Constitutional amendment. But because the truncated process foreclosed
on that option, I did not submit my joint resolution to the Rules
Committee.
Should the opportunity arise, I will vote to recommit this joint
resolution to the Judiciary Committee, in the hope that there can be an
open discussion, and broad debate on the matter. And I will vote for
Rep. Baird's amendment, H.J. Res. 83, on final passage, in the hope
that all Members who support the concept of a Constitutional amendment,
will similarly express themselves on the worthiness of that objective,
even though we may differ about which amendment would best serve this
Nation. For I think this issue will arise again, and perhaps there will
be an opportunity in the next Congress to more fully discuss and debate
the issue. Sen. Cornyn's proposed Constitutional amendment is making
its way through the Senate, so the issue is bound to arise again in
some form.
While I believe the need for a Constitutional amendment is self-
evident, I understand other Member's reservations about tinkering with
the Constitution. Nonetheless, I have yet to hear a satisfactory answer
to the question of what the Legislative Branch--not just the House--
could constitutionally do in the weeks or months following an attack,
if deaths and incapacitation left either chamber bereft of a quorum,
incapable of legislating, or so unrepresentative as to deligitimize any
actions it might take.
H.R. 2844, the ``Continuity of Representation Act'', which passed in
April, and which called for special elections within 45 days after a
certain number of vacancies occurred in the House, did not address that
question. I think we need to be realistic about the consequences of a
non-functional Legislative Branch at what is likely to be the most
critical juncture in our Nation's history.
And I would like to put to rest the notion that the continuity of
Congress debate is in any way partisan. There is no partisan content
whatsoever to this issue. Neither Republicans nor Democrats are
advantaged or disadvantaged by any of the ideas we are discussing. The
vote on H.R. 2844 should have put that notion to rest, when a majority
of Democrats voted for the bill, joining all but a handful of
Republicans.
Members will no doubt recall that in the days and weeks following
September 11, 2001, the House passed numerous pieces of vital
legislation, which allowed the government to function both in war, and
in furtherance of domestic policy goals. We did not hand out a ``closed
for business--trust the Executive'' sign. We exercised the checks and
balances essential to a stable and mature democracy, and we got the job
of legislating done in record time.
In the absence of a Constitutional amendment, there is the sad
prospect that the National could be governed by either martial law, or
by other extra-Constitutional actions by the Executive, of potentially
dubious legal status. This would be happening at the most critical time
in the Nation's history, since that would be the only means left to run
the government without a functioning Legislative Branch. And that would
trample upon one of the core principles of the Framers of our
Constitution--our system of checks and balances.
The Framers feared a powerful executive. And in the early days of
our Republic, the office of President was fairly weak. However it has
grown stronger over time, as the institutions of government have
evolved, and as the Nation's needs have changed. The essential roles of
Congress includes restraining the Executive, and that role remains
paramount in maintaining our democracy today.
We cannot predict how the Executive, claiming potentially
dictatorial powers, will operate in the absence of a functioning
Legislative Branch, or whether such actions will withstand legal
challenge. But we do know how to prevent this situation from ever
occurring. We need only to remove our heads from the sand, and take the
proper steps to legally address the issue under the Constitution.
While it is essential that we protect the ``people's House'' by
populating it with popularly elected representatives from the 50
states, it is also essential that we protect the ``people's interests''
by taking action to prevent the Legislative Branch from ever being shut
down for weeks and months following a catastrophic event.
I want to take a moment to discuss my own proposal, which I believe
is less cumbersome and more straightforward than some of the other
concepts. It would provide for the appointment of temporary Members of
the House by state legislatures or, in some instances, by state
governors, to serve pending the filling of vacancies through special
elections. I think this procedure would be less cumbersome than using
lists of potential successors which Members would have to create each
and every time they ran for office. In the next Congress, I might
consider leaving the appointment power to governors alone.
My amendment would require that all temporary replacements be from
the same political party as the Members they succeeded, and that their
tenure cease as soon as a popularly elected successor presents
credentials to the House. I look forward to future hearings to debate
that aspect of the proposal, since issues have been raised as to how
someone's party affiliation can be determined in some states.
The amendment would also bar the temporary replacements from seeking
office in the next election for the House, in order to ensure that they
focus on representing their new constituencies, and coping with the
emergency, rather than creating fund-raising committees and filming
television commercials.
The subject is also deserving of significant debate, since I know
some have argued that temporary replacements should have the right to
present themselves to the public for election in our democratic system.
I believe, however, that during a crisis following a potential attack,
it is more important to keep the government running, and there is
nothing in my amendment which would bar these temporary replacements
from running at a future time, after they have finished discharging the
responsibilities of the office to which they were appointed.
My proposed Constitutional amendment also addresses the complex
subject of incapacity, by giving Congress the power, by law, to address
it. The issue is better suited to examination in a law-making, or rule-
making process, rather than to being specified in detail in the
Constitution. As ranking member of the House Administration's
Committee, which has jurisdiction over the incapacity question, I hope
to press for Committee debate on the subject.
[[Page H3680]]
Mr. Speaker, I ask unanimous consent to insert at this point in the
Record, the text of H.J. Res. 89, and a section-by-section summary of
the resolution, and yield back the balance of my time.
H.J. Res. 89
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled (two-thirds of
each House concurring therein), That the following article is
proposed as an amendment to the Constitution of the United
States, which shall be valid to all intents and purposes as
part of the Constitution when ratified by the legislatures of
three-fourths of the several States within seven years after
the date of its submission for ratification:
``Article --
``Section 1. A smaller number than the majority of the
House may resolve that a vacancy exists in the majority of
the number of seats of the House of Representatives provided
by law.
``Section 2. After the adoption of a resolution under
section 1, the legislature of any State in which a vacancy in
the membership of the House of Representatives exists shall
convene a special session to appoint an individual to fill
the vacancy.
``Section 3. If the legislature of a State does not convene
a special session under section 2 during the 5-calendar day
period which begins on the day after the date the House
adopts the resolution described in section 1, or if the
legislature convenes a special session during such period but
does not appoint an individual to fill a vacancy in a seat
during the 3-calendar day period which begins on the date the
legislature convenes the special session, the chief executive
of the State shall appoint an individual to fill the vacancy.
``Section 4. An individual appointed under this article
shall meet the qualifications for service as a Member of the
House of Representatives, and shall serve as a Member until
an election is held to fill the original vacancy. The State
shall provide for such an election at such time and in
accordance with such procedures as may be provided by law,
except that the individual appointed under this article may
not be a candidate in the next election for the House. An
individual appointed under this article shall be a member of
the same political party as the Member of the House who
previously held the seat.
``Section 5. The procedures and requirements described in
sections 2 through 4 shall apply only with respect to a
vacancy existing as of the date of the adoption of the
resolution described in section 1 or a vacancy first
occurring during the 20-calendar day period which begins on
such date. In the case of a vacancy first occurring during
such 20-calendar day period, section 3 shall apply as if the
reference to the date on which the House adopts the
resolution described in section 1 were a reference to the
date on which the vacancy first occurs.
``Section 6. For purposes of carrying out the provisions of
this article, Congress shall have the power by law to specify
circumstances constituting when a vacancy happens in the
Representation from any State in the House of
Representatives, and to address the incapacity of Members of
the House of Representatives.
``Section 7. Congress shall have power to enforce this
article through appropriate legislation.''.
Summary of House Joint Resolution 89, a Constitutional Amendment
Introduced by Representative John B. Larson To Allow Temporary
Appointments To Fill Vacancies in the House of Representatives
Section 1. A smaller number than a majority of the House
may resolve that a vacancy exists in the majority of the
number of seats in the House provided by law, triggering the
temporary appointment provisions.
Section 2. The legislature of any state in which House
vacancies exist shall then convene a special session to
appoint persons to temporarily fill the vacancies.
Section 3. If the state legislature does not convene within
five calendar days after passage of the House resolution, or
if the legislature does not complete selection of temporary
House Members within a period of three calendar days
beginning on the date of convening, the governor is required
to make the appointments.
Section 4. Members serving temporarily in the House by
appointment must meet the constitutional requirements for
service in the House, and will exercise the full powers of
membership until the vacancies are filled by election as
provided by law. A temporary Member may not be a candidate in
the succeeding election and must be of the same political
party as the Member who previously held the seat.
Section 5. The temporary appointment authority applies to
vacancies which exist at the time of adoption of the
resolution by the House, or to any additional vacancies which
occur within 20 days thereafter. If vacancies occur within
this 20-day period, the time limits relating to action by the
state legislatures and governors begin again with respect to
those House seats.
Section 6. For the purposes of this article, Congress shall
have the power by law to specify circumstances constituting
when a vacancy happens in the House, and to address the
incapacity of Members of the House.
Section 7. Congress shall have the power to enforce this
article through appropriate legislation.
The article would become part of the Constitution if
ratified by the legislatures of three-fourths of the states
within seven years of the date of its submission to them.
Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Simpson). Without objection, the
previous question is ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Recorded Vote
Ms. LOFGREN. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. Pursuant to clauses 8 and 9 of rule XX, this
15-minute vote on the motion to recommit will be followed by 5-minute
votes, as ordered, on the question of passage on each of three motions
to suspend the rules on which proceedings were postponed yesterday and
earlier today.
The vote was taken by electronic device, and there were--ayes 194,
noes 221, not voting 18, as follows:
[Roll No. 218]
AYES--194
Abercrombie
Ackerman
Alexander
Allen
Andrews
Baca
Baird
Baldwin
Becerra
Bell
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boswell
Boucher
Boyd
Brady (PA)
Brown (OH)
Brown, Corrine
Capps
Capuano
Cardin
Cardoza
Carson (IN)
Case
Chandler
Clay
Clyburn
Cooper
Cramer
Crowley
Davis (AL)
Davis (CA)
Davis (IL)
Davis (TN)
DeFazio
Delahunt
DeLauro
Dicks
Dingell
Doggett
Dooley (CA)
Doyle
Edwards
Emanuel
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Filner
Ford
Frank (MA)
Frost
Gephardt
Gonzalez
Gordon
Green (TX)
Grijalva
Gutierrez
Harman
Hastings (FL)
Hill
Hinchey
Hinojosa
Hoeffel
Holden
Holt
Honda
Hooley (OR)
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
John
Johnson, E. B.
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick
Kind
Kleczka
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Lofgren
Lowey
Lucas (KY)
Lynch
Majette
Maloney
Markey
Marshall
Matheson
Matsui
McCarthy (MO)
McCollum
McDermott
McGovern
McIntyre
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore
Moran (VA)
Murtha
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Pelosi
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rodriguez
Rohrabacher
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sabo
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Sandlin
Schakowsky
Schiff
Scott (GA)
Scott (VA)
Serrano
Sherman
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Spratt
Stenholm
Strickland
Stupak
Tanner
Tauscher
Taylor (MS)
Thompson (CA)
Thompson (MS)
Tierney
Towns
Turner (TX)
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn
NOES--221
Aderholt
Akin
Bachus
Baker
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Biggert
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Carter
Castle
Chabot
Chocola
Coble
Cole
Collins
Cox
Crane
Crenshaw
Cubin
Culberson
Cunningham
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeLay
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Dreier
Duncan
Dunn
Ehlers
English
Everett
Feeney
Ferguson
Flake
Foley
Forbes
Fossella
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Goode
Goodlatte
Goss
Granger
Graves
Green (WI)
Greenwood
[[Page H3681]]
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Hostettler
Houghton
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas (OK)
Manzullo
McCotter
McCrery
McHugh
McInnis
McKeon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy
Musgrave
Myrick
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Osborne
Ose
Otter
Oxley
Paul
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pitts
Platts
Pombo
Porter
Portman
Pryce (OH)
Putnam
Quinn
Radanovich
Ramstad
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Ros-Lehtinen
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schrock
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Smith (MI)
Smith (NJ)
Smith (TX)
Souder
Stearns
Sullivan
Sweeney
Tancredo
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Toomey
Turner (OH)
Upton
Vitter
Walden (OR)
Walsh
Wamp
Weldon (FL)
Weldon (PA)
Weller
Whitfield
Wicker
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NOT VOTING--18
Ballance
Bereuter
Carson (OK)
Conyers
Costello
Cummings
Davis (FL)
DeGette
DeMint
Deutsch
Emerson
McCarthy (NY)
Nadler
Napolitano
Pickering
Stark
Tauzin
Wilson (NM)
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (Mr. Simpson) (during the vote). Members are
advised 2 minutes remain in this vote.
{time} 1756
Ms. GINNY BROWN-WAITE of Florida and Messrs. JOHNSON of Illinois,
SHERWOOD, HEFLEY, BEAUPREZ and BRADY of Texas changed their vote from
``aye'' to ``no.''
Mr. TANNER and Mr. PASCRELL changed their vote from ``no'' to
``aye.''
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The question is on the joint resolution.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--yeas 63,
nays 353, answered ``present'' 2, not voting 15, as follows:
[Roll No. 219]
YEAS--63
Baird
Bell
Berkley
Blumenauer
Brown (OH)
Capuano
Case
Chandler
Crowley
Davis (TN)
DeFazio
Dicks
Dooley (CA)
Engel
Eshoo
Evans
Frost
Gephardt
Gutierrez
Hastings (FL)
Hinchey
Honda
Hooley (OR)
Inslee
Jones (OH)
Kennedy (RI)
Kilpatrick
Langevin
Larsen (WA)
Larson (CT)
Lowey
Lucas (KY)
Matheson
McCollum
McInnis
Meeks (NY)
Miller (NC)
Miller, George
Oberstar
Pascrell
Payne
Pelosi
Rangel
Rohrabacher
Rothman
Ruppersberger
Ryan (OH)
Sabo
Sanchez, Linda T.
Schakowsky
Schiff
Sherman
Slaughter
Smith (WA)
Souder
Strickland
Tauscher
Towns
Udall (CO)
Vitter
Watson
Waxman
Weiner
NAYS--353
Abercrombie
Ackerman
Aderholt
Akin
Alexander
Allen
Andrews
Baca
Bachus
Baker
Baldwin
Ballenger
Barrett (SC)
Bartlett (MD)
Barton (TX)
Bass
Beauprez
Becerra
Bereuter
Berman
Berry
Biggert
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boswell
Boucher
Boyd
Bradley (NH)
Brady (PA)
Brady (TX)
Brown (SC)
Brown, Corrine
Brown-Waite, Ginny
Burgess
Burns
Burr
Burton (IN)
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Capps
Cardin
Cardoza
Carson (IN)
Carter
Castle
Chabot
Chocola
Clay
Clyburn
Coble
Cole
Collins
Cooper
Cox
Cramer
Crane
Crenshaw
Cubin
Culberson
Cummings
Cunningham
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Jo Ann
Davis, Tom
Deal (GA)
Delahunt
DeLauro
DeLay
Diaz-Balart, L.
Diaz-Balart, M.
Dingell
Doggett
Doolittle
Doyle
Dreier
Duncan
Dunn
Edwards
Ehlers
Emanuel
English
Etheridge
Everett
Farr
Fattah
Feeney
Ferguson
Filner
Flake
Foley
Forbes
Ford
Fossella
Frank (MA)
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gonzalez
Goode
Goodlatte
Gordon
Goss
Granger
Graves
Green (TX)
Green (WI)
Greenwood
Grijalva
Gutknecht
Hall
Harman
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hill
Hinojosa
Hobson
Hoeffel
Hoekstra
Holden
Holt
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hyde
Isakson
Israel
Issa
Istook
Jackson (IL)
Jefferson
Jenkins
John
Johnson (CT)
Johnson (IL)
Johnson, E. B.
Johnson, Sam
Jones (NC)
Kanjorski
Kaptur
Keller
Kelly
Kennedy (MN)
Kildee
Kind
King (IA)
King (NY)
Kingston
Kirk
Kleczka
Kline
Knollenberg
Kolbe
Kucinich
LaHood
Lampson
Lantos
Latham
LaTourette
Leach
Lee
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lofgren
Lucas (OK)
Lynch
Majette
Maloney
Manzullo
Markey
Marshall
Matsui
McCarthy (MO)
McCotter
McCrery
McDermott
McGovern
McHugh
McIntyre
McKeon
McNulty
Meehan
Meek (FL)
Menendez
Mica
Michaud
Millender-McDonald
Miller (FL)
Miller (MI)
Miller, Gary
Mollohan
Moore
Moran (KS)
Moran (VA)
Murphy
Murtha
Musgrave
Myrick
Neal (MA)
Nethercutt
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Obey
Olver
Ortiz
Osborne
Ose
Otter
Owens
Oxley
Pallone
Pastor
Paul
Pearce
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Pombo
Pomeroy
Porter
Portman
Price (NC)
Pryce (OH)
Putnam
Quinn
Radanovich
Rahall
Ramstad
Regula
Rehberg
Renzi
Reyes
Reynolds
Rodriguez
Rogers (AL)
Rogers (KY)
Rogers (MI)
Ros-Lehtinen
Ross
Roybal-Allard
Royce
Rush
Ryan (WI)
Ryun (KS)
Sanchez, Loretta
Sanders
Sandlin
Saxton
Schrock
Scott (GA)
Scott (VA)
Sensenbrenner
Serrano
Sessions
Shadegg
Shaw
Shays
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Smith (MI)
Smith (NJ)
Smith (TX)
Snyder
Solis
Spratt
Stearns
Stenholm
Stupak
Sullivan
Sweeney
Tancredo
Tanner
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Tierney
Toomey
Turner (OH)
Turner (TX)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Walden (OR)
Walsh
Wamp
Waters
Weldon (FL)
Weldon (PA)
Weller
Wexler
Whitfield
Wicker
Wilson (SC)
Wolf
Woolsey
Wu
Wynn
Young (AK)
Young (FL)
ANSWERED ``PRESENT''--2
Jackson-Lee (TX)
Watt
NOT VOTING--15
Ballance
Carson (OK)
Conyers
Costello
Davis (FL)
DeGette
DeMint
Deutsch
Emerson
McCarthy (NY)
Nadler
Napolitano
Stark
Tauzin
Wilson (NM)
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). Members are advised 2
minutes remain in this vote.
{time} 1805
Mr. EDWARDS, Ms. ROS-LEHTINEN, and Mrs. BONO changed their vote from
``yea'' to ``nay.''
So (two-thirds not having voted in favor thereof) the joint
resolution was not passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________