[Congressional Record Volume 150, Number 115 (Wednesday, September 22, 2004)]
[House]
[Pages H7410-H7418]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    DEFENDING FREEDOM AND DEMOCRACY

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 7, 2003, the gentleman from California (Mr. Dreier) is 
recognized for 60 minutes as the designee of the majority leader.


                             General Leave

  Mr. DREIER. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days within which to revise and extend their remarks 
on the subject of the Special Order that I am about to give.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  There was no objection.
  Mr. DREIER. Mr. Speaker, having listened to the words of my good 
friend, the gentlewoman from Ohio (Ms. Kaptur), I would like to say 
that the Special Order that I am going to be presenting this evening 
refers to exactly what she was talking about in the final remarks that 
she provided, very thoughtful remarks.
  It has to do with the fact that this institution, this building, this 
entity is in fact the citadel of freedom. And I think and I believe it 
is very important for us to realize the great importance of that.
  Mr. Speaker, it has been 3 years since the heinous attacks and the 
absolute horror that befell America on September 11 of 2001. And it was 
not just an attack on America. It was an attack on the free world. 
Citizens from many nations were murdered and maimed that day, as we all 
know. But perhaps more important, this was an attack on the core values 
of freedom and democracy that are embodied in our Nation and in all of 
the free people of the world.

                              {time}  2030

  While nations have cooperated in an unprecedented fashion in the 
fight against terrorism, unfortunately, much remains to be done.
  We have just gotten the tragic news in the last 24 hours of the 
tragic beheadings of Messrs. Armstrong and Hensley. We saw the bombings 
in Spain and the recent tragedy in Russia; both underscore the need for 
all of us to remain vigilant in this global war on terror.
  Mr. Speaker, our Nation has a special responsibility, a very special 
responsibility, to protect the core freedoms and liberties of 
democracy, for we continue, as I was saying at the outset, to be the 
beacon for democracy, and our Capitol, as the gentlewoman from Ohio 
(Ms. Kaptur) was just saying earlier, our Capitol perhaps is the single 
most recognized symbol of democracy all over the world.
  In fact, I remember very vividly back in 1990, I had the opportunity 
to bring one of the Solidarity activists from Poland for President 
Bush's State of the Union address. I remember very well we were walking 
along, and the Capitol, of course, was particularly well-lit because we 
all know on the night of the State of the Union the television networks 
put added light on the Capitol. All of the sudden, tears were coming 
down the face of these people who had come from Poland, and I asked 
what it was. They were simply looking at the Capitol dome, and that, 
for me, underscored how clearly this is the most recognized symbol of 
democracy and freedom in the world.
  I believe that our responsibilities as Representatives of this 
democracy are twofold. First, we must employ our full legislative power 
to make our Nation safer, our citizens more secure and to defend our 
democracy against all terrorists.
  Second, we must do everything in our power to ensure that our 
institution, the Congress itself, can continue to operate in the face 
of any crisis, any terrorist attack, any disaster. Again, we need to be 
able to see that this institution can function in any crisis, any 
terrorist attack, any disaster that could possibly hit us.
  Mr. Speaker, since the District of Columbia became the permanent seat 
of our government, the United States Congress has been unable to use 
the Capitol for an extended period only once. That occurrence, of 
course, was during the War of 1812 when the Capitol was burned, as we 
all know. Nonetheless, the enduring threat of the last century, the 
Cold War, forced the Federal Government to plan for its continuity in 
the event of a catastrophe.
  Some people assumed, however, that after the Cold War this kind of 
planning could stop. We all know that 3 years ago this past September 
11, not only did that tragic event put that notion to rest, but it 
changed our thinking and our planning for the continuation of 
representative government, representative democracy as we know it.
  Indeed, we saw smoke rising from the Pentagon and later heard of the 
bravery of the passengers on Flight 93 as they cried, ``Let's roll.'' 
Many of us shared a feeling of having just missed a bullet, a bullet 
that could have hit this Capitol itself.
  We share the additional responsibility for our very institutions, for 
our individual Members, for our staff and for the thousands of people 
who visit the Capitol every single day.
  Following September 11 and the subsequent anthrax and ricin attacks, 
our continuity learning curve has been very, very steep. However, the 
good news is that we have worked hard and have implemented a number of 
measures that improve the continuity of our Congress.
  Indeed, we have taken the advice of one of our great Framers of the 
Constitution, Alexander Hamilton, who in Federalist 59 said, ``Every 
government ought to contain in itself the means of its own 
preservation.'' Let me say that again. ``Every government ought to 
contain in itself the means of its own preservation.'' Those are 
Alexander Hamilton's words.
  Toward that end, in the last 3 years, the Speaker has focused the 
United States House of Representatives on three core areas for our 
overall continuity: number one, upgrading the physical security of both 
our D.C. and our constituency offices; number two, preserving our 
continuity of operations here in Washington, D.C.; and number three, 
addressing the continuity of our form of government itself through 
debating how to deal with catastrophes that result in large numbers of 
Members being killed or incapacitated.
  Mr. Speaker, let me now turn for a moment to discuss our efforts to 
preserve the continuity of our congressional operations.
  The Speaker of the House has long recognized that if the Capitol, or 
if Washington itself, were to become unsuitable as a meeting place for 
the House, whether due to attack, contagion or other calamity, an 
alternative site for operations would be needed. Much thought has gone 
into the placement of sufficient resources, technology, staffing and 
accommodations for Members and key staff so that we could continue to 
fulfill our duties to the American people. Additionally, we have 
already adopted a number of very important rule changes to give the 
House the operational flexibility we believe it would need in a crisis.
  Mr. Speaker, those include: first, authority for the Speaker to 
declare an emergency recess subject to the call of the Chair when 
notified of an imminent

[[Page H7411]]

threat to the safety of the House; second, authority to address the 
constitutional requirement that the House and Senate assemble in the 
same place outside the seat of government; third, authority for a 
designee of the Speaker to act with the Senate to effect a recall of 
the membership; and fourth, authority for the Speaker to convene the 
House anywhere within the seat of government.
  Now, at this point, I have a particular item I would like to enter in 
the Record.

      Parliamentary Steps Taken To Ensure Continuity of Operations

       Authority to effect a joint-leadership recall from a period 
     of adjournment to an alternate place (in concurrent 
     resolutions of adjournment).
       Authority to effect a joint-leadership recall from a period 
     of adjournment through designees (in concurrent resolutions 
     of adjournment).
       Anticipatory consent with the Senate to assemble in an 
     alternate place (in a putatively biennial concurrent 
     resolution on opening day of a Congress).
       Requirement that the Speaker submit to the Clerk a list of 
     Members in the order in which each shall act as Speaker pro 
     tempore in the case of a vacancy in the Office of Speaker 
     (including physical inability of the Speaker to discharge his 
     duties) until the election of a Speaker or a Speaker pro 
     tempore, exercising such authorities of the Speaker as may be 
     necessary and appropriate to that end (clause 8 of rule I).
       Authority for the Speaker to suspend pending business of 
     the House by declaring an emergency recess subject to the 
     call of the Chair when notified of an imminent threat to the 
     safety of the House (clause 12(b) of rule I).
       Authority for the Speaker, during any recess or adjournment 
     of not more than three days, in consultation with the 
     Minority Leader, to postpone the time for reconvening or to 
     reconvene before the time previously appointed solely to 
     declare the House in recess, in each case within the 
     constitutional three-day limit (clause 12(c) of rule I).
       Authority for the Speaker to convene the House in an 
     alternate place within the seat of government (clause 12(d) 
     of rule I).
       Codification of the long-standing practice that the death, 
     resignation, expulsion, disqualification, or removal of a 
     Member results in an adjustment of the whole number of the 
     House, which the Speaker shall announce to the House and 
     which shall not be subject to appeal (clause 5 of rule XX).
       Establishment of a Select Committee on Homeland Security 
     with oversight and legislative over matters relating to the 
     Homeland Security Act of 2002 identified by the Speaker and 
     the responsibility to make recommendations concerning future 
     legislative jurisdiction over homeland security matters (sec. 
     4, H. Res. 5, 108th Cong.).
       Establishment of an Appropriations Subcommittee on Homeland 
     Security.

  Mr. Speaker, as I have mentioned, we have approached continuity 
planning during the 108th Congress in three distinct areas. I now want 
to talk about what is perhaps the most difficult aspect of our 
planning: how we will continue to legislate if large numbers of our 
Members are killed or incapacitated.
  Obviously, this is a horrible thought. We do not like to even 
contemplate or consider it, but we all know that we live in a very, 
very dangerous world, and it is a responsibility that we have to take 
very seriously. This issue necessarily requires us to contemplate that 
which none of us really wants to consider, that being our mortality. 
Mr. Speaker, this is at the heart of why I stand before the House this 
evening. I am deeply concerned that we need to act now to protect the 
House as an institution if the unthinkable were to happen.
  One of the most difficult questions that we have had to consider is 
what we would do if large numbers of Members are so injured that they 
cannot fulfill their duties. This incapacitation of large numbers of 
Members, what we call the ``mass incapacitation'' of Members, poses a 
grave threat to the ability of the House to function in a time of 
crisis.
  We have spent a lot of time on a nonpartisan basis discussing this 
issue, and I underscore that this as an institutional issue. It is not 
a partisan issue. In each of these discussions, Mr. Speaker, good 
questions have been asked by a number of Members and staff on both 
sides of the aisle who are committed to the survival of this 
institution, the greatest deliberative body known to man.
  Mr. Speaker, what I would like to do now is address with answers some 
of the very important questions that have been posed. First of all, as 
we look at providing a definition of the problem, what is the so-called 
``quorum trap''?
  As we all know, a quorum is an essential part of a legislative body. 
In some nations, including our allies in the United Kingdom, it is but 
40 members, a very small number. However, in the United States, a 
quorum is set by the Constitution as a majority of Members. That is 
what is stated in the U.S. Constitution. Long-standing House precedent 
defines a majority as those Members who are chosen, sworn and living. 
``Chosen, sworn and living'' is what determines, that is, it's the 
precedent for establishing a majority. The standard does not address 
Members who are chosen, sworn, living, but unable to carry out their 
duties because they are incapacitated. Thus, if Members are alive but 
unable to carry out their duties, they remain in the calculation of 
quorum.
  If large numbers of Members are incapacitated and a roll call vote is 
needed, the House could be unable to obtain a quorum. This is what we 
call the ``quorum trap,'' where so many Members would, in fact, be 
unable to respond to a quorum call. Let me say that again. If large 
numbers of Members are incapacitated, we, as an institution, could be 
unable to act.
  The potential rule change that I will explain in a moment would go 
into effect if, after an attack, more than half the number of those 
Members remaining alive were incapacitated, again, half the number 
remaining alive are incapacitated. That is why we refer to this as 
``mass incapacitation.''
  Additionally, it is important to note that the quorum trap only 
becomes a problem for the House if a roll call vote is needed. Again, 
the quorum trap only becomes a problem if we have to have a roll call 
vote. House precedents provide that a quorum is presumed unless 
challenged. If the Members can agree to the business of the House being 
considered by unanimous consent, then the lack of a quorum would not be 
an issue. Nonetheless, as an institution, we cannot take the risk that 
we will always be able to act by unanimous consent.
  The House is very limited in what it can do without a quorum. It can 
only do two things without a quorum, Mr. Speaker. Number one, adjourn 
from day-to-day; or number two, send the Sergeant-at-Arms to try and 
bring enough Members in to constitute a quorum. Those are the only 
things that we are able to do without a quorum.
  Without the potential rule change to deal with the quorum trap, we 
could be unable to act at exactly the time that the American people 
expect us to do so.
  Unfortunately, even after years of consideration, no one has been 
able to adequately define exactly what incapacitation is for every 
possible situation. Up in the Committee on Rules, we had a hearing. We 
had testimony from our attending physician, Admiral Eisold. He 
testified to the Congress, and he revealed that making a determination 
of incapacitation involves so many factors that it would be difficult, 
if not impossible, to have a bright-line test for exactly what is 
incapacitation.
  Rather than trying to define incapacitation, this approach defines 
what constitutes the House. It is the number of Members who are not 
incapacitated. That is, the Members who can show up to answer the call 
of the House, the quorum call. That ``call of the House'' could be a 
regular roll call vote, like we have every day, or it could be done 
through the rule that gives the Speaker the power to recognize any 
Member to move a call of the House for establishing a quorum.
  What types of catastrophic events would trigger these kinds of 
provisions? Mr. Speaker, the language of the rule is intended to cover 
broad possibilities, including catastrophic circumstances involving 
natural disaster, attack, contagion or similar calamity that render 
representatives incapable of attending the proceedings of the House. 
For example, Members could be incapacitated because they are so injured 
that they cannot fulfill their duties, or they may be missing and 
presumed dead, or they could be held hostage.
  What is the solution? How would the potential rule change procedure 
play out? At its core, mass incapacitation presents one key problem for 
the House. If too many Members are incapacitated, the House is actually 
unable to do business for the American people during a time of crisis.

[[Page H7412]]

  The Constitution says that a majority quorum is required for House 
business.

                              {time}  2045

  Another way of thinking about this majority requirement is that it is 
a fraction. The amount above the line is the number of Members who are 
physically present and can participate. The amount below the line is 
the number of Members who exist. Rather than trying to define 
incapacitation, this potential rule change uses the ability or 
inability of Members to show up and participate as a measure of who 
exists, the amount below the line.
  This potential rule change, if adopted, would solve the quorum trap 
by requiring the following procedural steps: The rule requires that 
Members dispose of a motion for the Sergeant at Arms to find Members so 
that we can hopefully obtain a quorum without going any further than 
that.
  Additionally, if this attempt to gather a quorum fails, the next 
stage of the rule requires an extremely lengthy call of the House. We 
would call for 72 hours, a quorum call of 72 hours, exclusive of time 
that the House has spent in recess, to try to gather 218 Members in 
order to establish a quorum.
  Next, if that step fails to produce a quorum, the rule requires that 
the Sergeant at Arms, in conjunction with the Attending Physician to 
Congress and other relevant law enforcement and public safety 
officials, report to the Speaker, the minority leader and the majority 
leader on the state of the membership and whether the failure of quorum 
is due to catastrophic circumstances. This report would be updated 
daily and made available to the entire House. Members could, if they 
choose, disseminate the information. It would consist of the following:
  (A) the number of vacancies in the House and the names of former 
Representatives whose seats are vacant; (B) the names of 
Representatives considered incapacitated; (C) the names of 
Representatives not incapacitated but otherwise incapable of attending 
the proceedings of the House; and (D) the names of Representatives 
unaccounted for.
  Now, the next step in the rule is for the Speaker to decide whether 
to formally place the report of the Sergeant at Arms before the House. 
The Speaker could decide to delay this formal step in order to collect 
more information about the membership and the nature of the 
catastrophe. However, if the Speaker does place the report before the 
House formally, the next step would be to have another very lengthy 
quorum call, 24 hours, again exclusive of time that the House would be 
in recess.
  Finally, if enough Members for a quorum of 218 have not shown up at 
this point, then the rule would allow for the establishment of a 
``provisional,'' that is, a temporary quorum of the House at this 
point. This ``provisional quorum'' would consist of a majority of those 
Members who could show up and fulfill their duties. Under this 
temporary quorum, the House could act for the American people in a time 
of crisis.
  Now, what are the origins of this plan? Continuity discussions began 
in earnest during the 107th Congress. The bipartisan House leadership 
agreed on the formation of a task force led by my colleague, the 
gentleman from California (Mr. Cox), and the ranking minority member of 
the Committee on Rules, the gentleman from Texas (Mr. Frost). This task 
force included a number of Members concerned about the continued 
operations of our institution. Many of the recommendations of the Cox-
Frost group were adopted at the start of the 108th Congress. This rule 
change concept originated in the Cox-Frost discussions. However, an 
impasse was reached over how to try to define incapacitation, and the 
group decided to allow for more analysis of this very, very difficult 
question.
  Mr. Speaker, the Continuity of Government Commission, sponsored by 
the American Enterprise Institute and the Brookings Institution, tried 
to consider the issue of incapacitation but, similarly, could not come 
to agreement over how to define incapacitation or what to do about it. 
As we have said, this is a very, very difficult issue.
  The Committee on Rules held a hearing on H. Con. Res. 190 to create a 
joint House-Senate committee to address continuity issues, including 
incapacitation, and the House overwhelmingly passed it in June of last 
year. The Senate has not acted upon this proposal yet.
  In the spring of this year, just a few months ago, as we all know, 
the House addressed what to do if large numbers of Members are killed, 
and this institution adopted by a bipartisan margin of 306 to 97 the 
Continuity of Representation Act, which I coauthored with the chairman 
of the Committee on the Judiciary, my friend, the gentleman from 
Wisconsin (Mr. Sensenbrenner).
  Additionally, the House rejected a proposed constitutional amendment 
to allow for the appointment of temporary ``stand-in'' Members who were 
incapacitated or killed. That was defeated on a vote of 63 to 353. So 
this institution has stated very firmly that we want to maintain the 
elective nature of this institution, as James Madison, the father of 
the Constitution, envisaged it.
  We know very well, Mr. Speaker, that ours is the only Federal office 
where one must be elected to be able to serve at the Federal level. 
Senators can be appointed, and we all know that, by appointment, one 
can become the President of the United States without standing before 
the voters. But this institution is where everyone who has ever served 
has been elected. And I am happy that, by a margin of 63 to 353, the 
House rejected that proposed constitutional amendment.
  The Committee on Rules held an original jurisdiction hearing on the 
mass incapacitation of Members in April of 2004. Testifying at the 
hearing were a number of experts on the House rules, the Constitution 
and the issue of incapacitation. The report of this hearing is 
available on the Committee on Rules Web site and has been printed by 
the Government Printing Office.
  At the April 2004 hearing, we distributed a discussion draft of the 
proposed rule change. Discussions have continued on a bipartisan basis 
since then, and a number of improvements to the proposal have been 
made.
  Now, why would we need a provisional quorum? Why does the House need 
to establish procedures to deal with the possibility of mass 
incapacitations?
  We need to assure the American people we are doing everything we can 
to provide for continuity of government in the face of any catastrophic 
event. Rules must be in place prior to a crisis. We need to be 
considering this matter with a ``triage'' mindset, similar to that 
taken by health care workers and doctors during an emergency.
  Mr. Speaker, if a jet plane, God forbid, hits this Capitol dome, hits 
this building when we are all here voting or a biological agent is 
released, we need to plan for how to deal with the worst problems 
first. We need to realize that we will not be operating in a best-case 
scenario and that having some plan in place is better than no plan at 
all.
  Now, why does this proposal that we have only address mass 
incapacitations?
  Mr. Speaker, this procedure would go into effect if large numbers of 
Members are incapacitated, large numbers. If individual Members are 
incapacitated, they are very unlikely to affect our ability to achieve 
a majority quorum. However, after a catastrophe, a key question will be 
whether it resulted in large numbers of deaths, large numbers of 
incapacitations or both.
  If we are dealing with a full, living membership and only 
incapacitated Members but no deaths, we would need 218 or more Members 
incapacitated in order to trigger a problem with quorum. With deaths, 
the quorum is automatically reduced by the rules, and the number of 
incapacitations that could trigger a quorum trap also would drop.
  To illustrate: If you had 300 fatalities, the rules now would require 
a quorum consisting of a majority of the remaining 135 Members. There 
are a total of 435 Members in the House, as we all know, Mr. Speaker. 
If we had 300 fatalities, the rules would require a quorum consisting 
of a majority of the remaining 135 Members, which would mean a quorum 
would be 68 Members. However, if 68 or more of the remaining Members 
were incapacitated, we would be in the quorum trap. The House would be 
unable to function.

[[Page H7413]]

  Now, what about those living Members who are not incapacitated but 
otherwise unable to show up and to participate?
  If, for example, a Member is stuck overseas at the time of the quorum 
calls and makes his or her presence and willingness to return known, 
then that Member's seat cannot be declared vacant through expulsion. In 
addition, the potential rule change would not change or in any way 
modify the long-standing provisions allowing a smaller number of the 
House to arrest and force the return of a wayward Member.
  Now, the constitutionality of this proposed solution is a very, very 
important question. Is it constitutional? Is it constitutional? Who 
would have standing to sue over this provision?
  Mr. Speaker, to me it is very clear. Article I, section 5, clause 2 
of our constitution gives the House and the Senate authority to 
determine their own rules of proceeding. Professor Walter Dellinger, 
the great constitutional expert, testified before our committee at the 
April 2004 meeting, the hearing we had on incapacitation and quorums. 
In that hearing, in his testimony, he said the following, and I happen 
to agree with him. This is Professor Dellinger. ``It is simply 
inconceivable that a constitution, established to `provide for the 
common defense' and `promote the general welfare,' would leave the 
nation unable to act in precisely the moment of greatest peril.''
  He went on to say, ``No constitutional amendment is required to enact 
the proposed rule change because the Constitution as drafted permits 
the Congress to ensure the preservation of government.''
  Professor Dellinger continued saying, ``I think there is a great 
advantage to adopting a rule now if we can get really widespread and 
bipartisan agreement on it, because you are acting now behind what one 
of the philosophers calls the ``veil of ignorance.'' You don't know 
whose party is going to be benefitted, if we were to see mass 
incapacitation; whose faction is going to be burdened by this. No one 
knows what impact it would have on the makeup of this institution.
  Now, one of the things we, of course, want to do is maintain the 
rights of the minority. So the question that is naturally raised is, 
how are the rights of the minority protected under this potential rule 
change?
  It is important to note that the Speaker can, at any time, recognize 
any Member for a motion to adjourn, which, if adopted, would stop this 
process and force it to be completely started over, if he chooses to 
start it over at all.
  Additionally, while the report of the Sergeant at Arms must be made 
available to the membership on a daily basis, the Speaker has the power 
to not formally announce the report of the Sergeant at Arms to the 
House. He has the right to not announce and, thus, can delay or stop 
the process from moving forward.
  Now, if at any time a Member is no longer incapacitated and can show 
up, then he or she is automatically added back into the calculation of 
quorum. Once we again have 218 Members present, then the provisional 
quorum under this rule change ends.
  Finally, the Senate would always act as a check and balance to any 
action of the House under a provisional quorum, as would the President, 
the Judiciary, the press and the public.
  Now, Mr. Speaker, some have noticed that we made the Speaker's 
actions in deciding to announce the report of the Sergeant at Arms 
unappealable. Now, why is that, that we placed this responsibility 
solely with the Speaker?
  The role of the Speaker is that of a ministerial act in dealing with 
this. That act of the Speaker announcing the report could only come 
after an extremely long quorum call, as I said, 72 hours, excluding 
time spent in recess. If that extremely long quorum call has not 
produced a quorum, then by definition you cannot appeal a ruling of the 
Chair if you do not have a quorum present.
  To make this action appealable, you would place the procedure back 
into the quorum trap, and therefore, it could not be used, because if 
the Speaker does make a decision, the ruling could not be challenged 
because a quorum would not be present.
  Additionally, another reason for the unappealability of the Speaker 
announcing the catastrophic quorum failure report is that the Speaker 
is not required to make the announcement. By not announcing the report, 
he can stop the functioning of the proposed rule so that more 
information can be gathered and considered.
  Now, what about requiring the concurrence of the minority leader in 
determining who should be counted for a quorum?
  The Speaker is the only constitutionally proscribed authority for the 
House. This type of decision should not require equal sign-off from 
someone in the opposite party. It politicizes a procedure that, as I 
said, should be a ministerial procedure. The current House rules have a 
rare exception on minority concurrence on timing of committee hearings 
but not on any question of this magnitude. And even with this 
exception, the chairman of a committee can, by a majority vote, decide 
to hold a meeting at any time, even without the concurrence of the 
minority.
  We should not make the rules ``partisan'' in an attempt to appear 
``bipartisan.''

                              {time}  2100

  We should strive in a rule such as this, of such great magnitude, to 
be nonpartisan. This is because we do not know, nor can anyone predict, 
which party would be most affected by a catastrophe. It is entirely 
possible, Mr. Speaker, that the Speakership and control of the House 
could change hands following a catastrophe. There would still be the 
need for a quorum to elect a new Speaker no matter what party had the 
most Members responding.
  Mr. Speaker, in a time of crisis, the House will need one leader who 
can act, not a committee, and should not be concerned with 
partisanship. Partisanship should not be an issue in a time of a 
catastrophe like we are contemplating here. This holds true for 
whichever party is in control and whoever is elected Speaker.
  Mr. Speaker, we hope and pray that the circumstances never arise 
where such an order of the House is necessary. But at the same time if 
we do not address the problem of mass incapacitation, we will fail at 
one of our most important duties, assuring continuing representation 
and congressional operations for the American people during times of 
crises.
  Finally, I would like to advise Members that we hope very much to 
bring these matters before the full House very soon. It is vitally 
important that the House have in place a procedure to deal with mass 
incapacitation before we complete our business for the year and recess, 
before the national elections, and before the counting of electoral 
ballots.
  Mr. Speaker, as I have already done, I have asked unanimous consent, 
and I know the gentleman from Texas (Mr. Frost) was hoping to be able 
to participate here this evening, the ranking minority member of the 
Committee on Rules, and he had some comments that I know he plans to 
add into the Record; and I am sure there will be other Members who wish 
to add their comments to this very important issue, which, as I said, 
we do not like to contemplate, but we must take on our responsibility 
to do just that.
  Mr. FROST. Mr. Speaker, I would like to thank the Chairman of the 
Rules Committee Mr. Dreier for convening this special order tonight to 
discuss the very important issue of how the House would survive an 
enemy attack that left a majority of our Members dead or unable to 
perform their duties. I would also like to associate myself with the 
comments of my Rules Committee colleague, Mr. McGovern, who is the 
ranking member of the Rules Subcommittee on Technology and the House 
and has taken a keen interest in this issue.
  Mr. Speaker, it has been more than 3 years since the September 11 
attacks and the startling realization that the Capitol Building and 
Members of Congress were in imminent physical danger that morning. If 
not for the bravery of the passengers on Flight 93, the United States 
Capitol, the seat of our legislative branch, could have been destroyed 
by an enemy attack, killing or injuring an unknown number of Senators, 
Representatives, and staff. It is now clear we were wholly unprepared 
to deal with the aftermath of a successful attack. We had given little 
thought to how Congress would continue performing our duties if our 
chambers and offices were destroyed, and many of our Members were dead, 
injured, or missing.
  There is no way the wise people who created our Federal Government 
could have ever foreseen the possibility that enemies of the

[[Page H7414]]

United States could highjack large commercial jets and try to fly them 
into the seat of the Federal Government. In the summer of 1787, the 
Founding Fathers spent a great deal of time identifying, discussing and 
correcting the weaknesses in the constitutional system they were 
creating, but we cannot fault them for remaining silent on threats to 
the system they were unable to imagine.
  It instead falls on our shoulders to take the necessary steps to 
ensure that Congress will continue to function in the face of threats 
that are new to our age. All Members of the 108th Congress, especially 
those in leadership positions, share the same responsibility that 
Members of the 1st through 107th Congresses bore during their times of 
service: to preserve the institution of Congress and the role of the 
legislative branch in our constitutional democracy. As I have stated 
many times in the various hearings and debates we have conducted over 
the past several years, ``continuity of Congress'' is above all an 
institutional issue. There is no issue on which partisan posturing or 
maneuvering is less appropriate. Our enemies seek to destroy and 
disrupt our democratic system; they view all of us, both Democrats and 
Republicans, as their common enemies.
  Mr. Speaker, on the evening of September 11, we gathered on the East 
steps of the Capitol as Americans and as Members of Congress who had 
sworn to protect and defend our country and our Constitution. At that 
moment, our partisan divisions were meaningless. We stood hand in hand 
and sang ``God Bless America'' to show the American people that their 
Congress was open for business and prepared to respond to the terrorist 
attacks. As the former Republican majority leader, my North Texas 
colleague, Dick Armey commented at that time: ``I cherish the fact that 
when our country needed us to come together, we stood on the steps of 
this Capitol and hand to hand we sang ``God Bless America'.''
  Over the 3 years that have now passed since that evening, there have 
been moments where Members of Congress and outside experts have risen 
to the challenge of honestly confronting the tough questions 
surrounding how our three branches of government would endure a direct 
enemy attack. In May 2002, the Speaker and minority leader created a 
bipartisan ``Continuity of Congress Working Group,'' which I co-chaired 
and came to be known as the ``Cox-Frost Working Group.'' This group met 
eight times in the following months, consulted with outside experts, 
and carefully examined the current rules and statutes governing 
congressional and executive succession. Late in the 107th Congress, the 
group unanimously recommended three House Rules changes it felt would 
improve the Speaker's ability to reconvene the House after an attack. 
The House adopted these suggestions into its rules package for the 
108th Congress.
  Elsewhere in Washington, Congressional scholars from two usually 
ideologically opposed think tanks, the Brookings Institution and the 
American Enterprise Institute, came together to create the Continuity 
of Government Commission to examine these problems. Commission members 
included former House Speakers Newt Gingrich and Tom Foley, respected 
former Members of Congress from both parties, as well as former senior 
officials from both Democratic and Republican administrations. After 
two all-day hearings and extensive consultations with former Members of 
Congress and scholars, the Commission released a report in May 2003 
concluding that ``there is a gaping hole in our constitutional fabric 
that would allow large numbers of vacancies in Congress to continue for 
a significant period of time.'' The Commission frankly admitted that it 
looked at all options short of amending the Constitution, but 
reluctantly concluded that amending the Constitution to clarify what 
would happen in the case of mass vacancies or incapacitation in 
Congress was ``the only solution that adequately addresses the 
problem.'' The Commission wrote: ``Our study of alternative approaches 
persuades us that no other option provides more than a partial and 
inadequate fix to the problem.''

  It has been a great disappointment to watch the spirit of honest 
inquiry and comity that characterized the work of the Cox-Frost group 
and the Continuity Commission vanish in the 108th Congress. I have been 
dismayed to see the House debates over continuity issues in this 
Congress revert back to the normal partisan lines. On several occasions 
this year, Republican leaders have jammed through bills and resolutions 
on continuity issues with little or no opportunity to offer amendments 
and inadequate hearings. While Rules Committee Republicans deserve 
credit for holding a civil and informative hearing on this proposed 
rules change last April, the only outside witness they called to 
testify was a legal scholar who would confirm their pre-determined 
position that the House rulemaking power allows the Speaker to adjust 
down the quorum number. With all due respect to the Republicans on my 
committee, I do not believe this single hearing confronted the 
constitutional and institutional complexities raised by this rules 
change in the serious, thoughtful way they deserved.
  Although the resolution draft the committee is currently circulating 
is a great improvement over earlier drafts, I nevertheless oppose it. I 
do so because I do not feel it takes all of the steps necessary to make 
sure that in the wake of a catastrophic enemy attack, the surviving, 
able-bodied Members of the House of Representatives would be able to 
regroup, reorganize, and demonstrate to the American people that they 
have risen above their partisan divisions to preserve the House of 
Representatives and the indispensable role it plays in our 
constitutional system. It is essential that the rules we establish now 
to govern a future catastrophic situation give the remaining Members 
every possible tool to prove to the American people that all of their 
actions, both the reorganization and the legislation they pass 
afterwards, are motivated only by their duty to protect our country and 
our democratic form of government. I believe this resolution's failure 
to establish a process in which a diminished House can only organize 
and do business with the concurrence of party leaders will leave it 
vulnerable to charges of partisanship and illegitimacy.
  The rules change proposed in this resolution addresses the issue of 
mass Member incapacitation. What would happen if terrorists managed to 
successfully injure, but not kill, a significant number of Members of 
Congress? Since the early 20th century, House precedents have defined 
the membership of the House for the purpose of determining a quorum as 
those Members ``chosen, sworn, and living,'' which has resulted in 
small periodic adjustments to the quorum number as individual Members 
die or resign. In the case of mass incapacitation, where Members would 
temporarily be unable to perform their duties but were still alive, the 
House would not be able to conduct business because it would lack a 
majority of its extant Members and therefore lack a quorum.
  The solution to this problem proposed in this rules change is to 
lower the quorum number by the number of Members who are incapacitated 
and temporarily unable to perform their legislative duties. In other 
words, in the wake of a calamitous event, the House would conduct its 
lawmaking and other business not with a quorum of 218 (as is now 
required if all apportioned 435 House seats are occupied), but with a 
much smaller number of Members. For example, if terrorists launched a 
successful anthrax attack on a meeting of the Republican Conference and 
temporarily debilitated the 228 current Republican Members of the 
House, the remaining Members could meet, declare those Republican 
Members incapacitated, adjust down the quorum number to 104 (the 
majority of living House Members still able to perform their duties), 
and then conduct any and all business, including declaring war and 
electing a Speaker. Operating under this so-called ``provisional 
quorum,'' the House could pass bills with as few as 53 votes (a 
majority of 104 Members).
  A problem the majority has ignored through this process is whether 
the Constitution allows the House to adjust its quorum number downwards 
to a figure significantly below 218 seats, a majority of the whole 
number of currently apportioned seats. Instead of honestly exploring 
this important question, the Rules Committee glossed over it. It called 
in one expert, the well-respected Duke Law School professor and former 
Solicitor General Walter Dellinger, who testified that the House 
rulemaking power is sufficiently robust and that the Constitution's 
quorum language is sufficiently vague to allow the House to adjust down 
the quorum number to account for Members incapacitated due to a 
national calamity. Professor Dellinger's argument is that a diminished 
House is better than no House at all in an emergency situation and that 
a literal reading of the Article I quorum requirement could do 
irreparable damage to our system of government, which the Founders 
could not have intended.

  While Professor Dellinger is a well-regarded jurist and I accept his 
pragmatic reading of Article I for the purpose of this proposed rule 
change, I must note that other experts are less confident that lowering 
the quorum is constitutionally sound. These scholars argue that a plain 
reading of article I, sec. 5, cl. 3 of the Constitution (``a Majority 
of each [House] shall constitute a quorum to do Business'') leads to 
the obvious conclusion that the House can only do business when a 
majority of its whole, apportioned number is present. The Founders 
viewed the House as the most purely republican, representative 
department of the Federal Government, whose Members were most directly 
accountable to what James Madison called the ``great body of the 
people'' of the United States. They argue that allowing a small 
fraction of Members to pass laws and do business violates the 
fundamental, constitutional function of the ``People's House.''
  Professor Cass Sunstein of the University of Chicago Law School, for 
example, in testimony he submitted to Senator Cornyn and

[[Page H7415]]

the Senate Judiciary Committee, takes the position that the House 
rulemaking power may extend to lowering the quorum, but concedes, ``To 
say the least, it is awkward and uncomfortable to interpret a document 
in a way that violates its evidently plain meaning. In addition, the 
quorum provision has an important structural purpose, which is to 
ensure that laws are not made by a minority of the legislature, in a 
way that compromises the constitutional commitment to deliberative 
democracy. (The ability to raise quorum objections to a voice vote is 
an important safeguard here).''
  While I personally believe the House's constitutional rulemaking 
power allows the House to temporarily lower its quorum number in 
extraordinary circumstances, we have no assurance our courts and the 
``great body of the people'' of the United States will accept as 
legitimate the laws we pass with a significantly reduced quorum. In 
addition, Rules Committee Republicans' assurances that these proposed 
rules changes are non-justiciable are less than meets the eye. They are 
correct that under our Federal case or controversy jurisprudence, it 
would be almost impossible to challenge the rules themselves, 
especially before they are invoked. But they gloss over the fact that 
citizens injured by laws passed by a House with a diminished quorum 
would likely have justiciable claims.
  Consider the following example: During a period of mass 
incapacitation, a Congress with a diminished House imposes a punitive 
commercial tariff on a foreign country Congress feels has not been 
sufficiently helpful in the War on Terrorism. A businessman in New York 
who imports goods from that country is economically damaged by the 
tariff. He goes to a Federal court with a claim that the tariff is 
invalid because the House approved the tariff without a Constitutional 
quorum and requests an injunction blocking enforcement of the law. This 
businessman would almost certainly have a justiciable claim. His facts 
would be identical to those of the case that resulted in the famous 
U.S. v. Ballin case, in which the Supreme Court held that the House's 
rulemaking power allows the Speaker broad latitude in determining the 
best way to count Members to determine that a majority of the House is 
present and there is a quorum to conduct business. The Ballin case did 
not reach the question of what the term ``majority'' means or whether 
the Speaker has the power to change it to a number other than the 
majority of the whole number of apportioned House seats. That would be 
the question the injured New York businessman asked our courts to 
decide and an adverse decision could cast into doubt all of the actions 
of a House operating with a provisional quorum.
  I run through this scenario not just to illustrate that we should not 
presume that this rule change will survive a legal test just because 
the Majority has found one respected legal expert who believes it is 
constitutional. The actions of a House meeting with a diminished quorum 
will be subject not just to judicial scrutiny, but to the scrutiny of 
the American people. Will the American people accept as legitimate the 
actions of a House made up of a fraction of its 435 seats? Will the 
American people accept laws passed by House Members who represent only 
a fraction of Madison's ``great body of the people'' of the United 
States? I feel that a diminished House, especially a diminished House 
whose basic partisan makeup is significantly altered, could be subject 
to suspicions that it is acting not in the best interests of the 
country, but in the interests of the party that was fortunate to lose 
fewer of its Members in an enemy attack.
  The rules change proposed in various drafts of this resolution does 
not reassure me that the Republican leadership is sufficiently 
sensitive to this concern. Under its proposed rules change, in the 
aftermath of a calamity, the House would first use the power it has 
under clause 5 of rule XX to assemble a quorum through compelling the 
attendance of absent Members. Under this provision, a majority of 15 
Members may vote to send the Sergeant-at-Arms out to arrest those 
Members able to attend, and to otherwise account for absent Members. 
When this process is exhausted, and a quorum has not yet appeared, the 
House would go through a special 72-hour quorum call. During this 
period, the Speaker and other House officers would be working to 
determine the nature and extent of the crisis. At the end of this 3-day 
quorum call, the Speaker could then present to the House an 
unappealable ``catastrophic quorum failure report'' concluding that a 
calamity has taken place, a large number of Members are incapacitated, 
and that, as a consequence, the House is unable to assemble a majority 
of its whole number to do business. After another 24-hour quorum call, 
the quorum number would be automatically adjusted downwards to a new 
``provisional'' quorum number. This provisional number would be 
determined by excluding the Members who have died and those Members 
whom the report deems incapacitated, unaccounted for, or otherwise 
incapable of attending. With this new, smaller provisional quorum, the 
House would then be able to conduct any business it can currently 
conduct with a quorum of the whole number of the House.

  I acknowledge and am grateful that Rules Committee Republicans 
improved on earlier drafts of this resolution by providing more detail 
on what information the ``catastrophic failure report'' should contain 
and by adding a requirement that the Speaker consult with the two party 
leaders when he or she receives and then announces the content of the 
report. But I must point out that the current language does not 
adequately address my fundamental concern that the actions of a House 
operating under a provisional quorum will be vulnerable to charges of 
illegitimacy and political manipulation.
  Under the scheme set up in the draft resolution, the Speaker would 
still have the sole power (1) to determine that a catastrophic event 
contemplated by the rule has occurred and (2) to determine which 
Members are incapacitated and therefore unable to perform their duties. 
While I respect the fact that the Speaker is the constitutionally 
created presiding officer of the House, I would also note the obvious 
fact that the Speaker is the leader of the majority party in the House. 
I am concerned that the Speaker's unilateral decisions to designate a 
disaster situation and/or to declare certain Members incapacitated will 
be vulnerable to charges of partisanship and manipulation. Such 
charges, whether they are made against a Republican or a Democratic 
Speaker, would harm the legitimacy and the credibility of any 
subsequent actions the House took with a diminished quorum.
  During our discussions over the wording of this rules change, I 
proposed language to ensure that the decision to declare a calamity or 
declare Members incapacitated would occur in a manner that would be 
most likely to garner broad support and legitimacy in the House and in 
a country struggling in the aftermath of an enemy attack. To have 
legitimacy, we must be able to show Members from both parties and the 
American public that our decision to operate under a reduced quorum was 
based solely on our solemn duty to preserve the institution of the 
House. I proposed simple language I felt would turn a unilateral 
decision-making process into a consensus-building, institutional 
process designed to garner the broadest possible support. My version 
would require the Speaker not to just consult with the majority and 
minority leaders, but to obtain their concurrence that a calamity has 
occurred, that certain Members are dead or incapacitated, and that it 
is necessary to trigger the process for establishing the lower 
provisional quorum.
  The testimony of the House Attending Physician, Dr. John Eisold, 
during the April 2004 hearing, highlights my concerns about a process 
that gives the Speaker unilateral decision-making power. Dr. Eisold's 
testimony made it clear that determining a Member's ability to serve in 
the House after a calamity could become a very controversial matter. 
While medical professionals like Dr. Eisold could provide the Speaker 
with an ``objective description of the state of a member's health as 
determined by the medical establishment,'' the determination of 
incapacitation is a subjective judgment, ``made by non-medical people 
but based on meaningful and accurate medical input.''
  During Dr. Eisold's testimony, both Mr. Hastings of Washington and 
Mr. McGovern discussed the dangers inherent in this determination-of-
incapacity process.
  They posed a very important question: How do we prevent the process 
from becoming one where Members are declared incapacitated based on 
their party rather than their medical condition? For example, what 
credibility would the Speaker's decision have to declare a Member of 
his or her own party fit to serve in the House, but to declare a Member 
of the other party with similar symptoms incapacitated? I believe the 
only way to conduct this process in a manner that promotes legitimacy 
is to require that not just the Speaker, but the leaders of both 
parties in the House, agree that a certain Member is or is not able to 
report for work. An incapacitation list approved by the Speaker, as 
well as concurred in by party leaders, would reassure Members of both 
parties and the public that the process has been based only on the best 
available medical information and the best judgment of their 
Congressional leaders.
  Regrettably, but not surprisingly, Republican Members of this 
Committee have resisted my suggestion. I have argued that changing the 
procedure from one where the Speaker merely consults with party leaders 
to one where he or she must obtain their concurrence would transform a 
potentially politically divisive moment into a moment where 
Congressional leaders from both parties would be able to assure the 
American people that the legislative branch has survived an enemy 
attack and is open for business. It would foster a process that would 
result in a show of solidarity and strength like the one Members of 
Congress showed on the Capitol steps after the September 11 attacks. I 
believe that any Speaker,

[[Page H7416]]

Democrat or Republican, who found her or himself in this situation, 
would welcome the political and moral support of senior House Members 
from both parties.

  An objection I have heard to my concurrence language is that it 
improperly limits the Speaker's constitutional power to preside over 
the House. The Constitution and our House Rules give the Speaker 
extensive power to organize the House, to conduct the House's day-to-
day business, and to maintain order in the House. Under my proposal, 
with the concurrence of the majority and minority leaders, the Speaker 
would retain the ministerial power to issue the calamity report, 
trigger the provisional quorum process, preside over a diminished 
House, and control the House's agenda. I must restate the obvious 
point, however, that this resolution is not a run-of-the-mill rules 
change. This resolution sets the House on a course into uncharted 
constitutional territory, where questions concerning the legitimacy of 
its actions could be very serious. The Speaker's powers to preside over 
the House would mean very little if the House were discredited by 
actions the American public broadly viewed as partisan and 
opportunistic.
  Furthermore, I would point out that while the Speaker's powers to run 
the House are broad, they are finite. In a variety of ways, our 
standing House Rules protect Members from what Jefferson called the 
``caprice of the Speaker.'' The House can vote to remove the Speaker 
and can reverse the Speaker's rulings on points of order and calls to 
order. The rules change contemplated in this draft resolution, however, 
makes an extraordinary departure from the principle that the House has 
the right to rein in a Speaker who is abusing her or his power. The 
resolution makes unappealable the Speaker's decision to announce that a 
calamity has occurred and that certain Members are incapacitated. While 
I agree that the exigencies of a catastrophic situation might require 
that the Speaker be able to act quickly and decisively after the House 
has decided that a calamity has occurred, the Speaker risks losing the 
confidence of Members and the American public if he or she acts without 
the concurrence of party leaders, in a manner unhappy Members or 
outside critics could characterize as irresponsible or capricious.
  I must also point out that any taint of illegitimacy or political 
opportunism generated by the House in the wake of a calamity could 
easily spread to the Executive Branch. Under our current Presidential 
succession statute, the Speaker of the House is the third in line to 
succeed as President and a newly elected Speaker would bump any Cabinet 
Secretary lower in the line of succession who has taken the office of 
President in accordance with the statute. In other words, a House 
operating under a provisional quorum in the wake of a catastrophic 
event that has not only killed or injured many Members of Congress, but 
has also killed the President, the Vice President, and the Speaker, 
could have the power to choose the new President through the election 
of a new Speaker.
  Under clause 8(3) of rule 1, which we adopted at the beginning of the 
108th Congress, if the Speaker perishes or is seriously injured in an 
attack, the Member at the top of the successor list the Speaker has 
delivered to the Clerk becomes Speaker pro tempore (with all of the 
authority of the Office of Speaker) until the House elects a new 
Speaker. This raises the question of whether the temporary Speaker pro 
tempore would be in the line of succession and therefore become 
President. This possibility leads to another vexing question: would the 
temporary Speaker pro tempore be bumped from the Presidency by the new 
Speaker elected by a House operating under a provisional quorum? 
Another troubling scenario would be one in which the Speaker and the 
Members he or she has named as successor Speakers pro tempore all 
perish or remain seriously injured in an enemy attack. As our current 
Parliamentarian John Sullivan testified at the April hearing, in this 
case, the Clerk would take the Chair, the House would elect a new 
Speaker, and then reorganize in the same way the House reorganizes at 
the beginning of each Congress. A Speaker elected in this fashion would 
also be in the line of Presidential succession under current law.
  These startling possibilities make me more insistent than ever that 
the process of declaring a calamity and conducting business in a 
diminished House be one that garners the broadest possible confidence 
and support. The aftermath of an enemy attack is the worst possible 
time for our country to endure a debate over whether the sitting 
President properly holds the office.
  Finally, I find it curious that the Republicans have resisted 
accepting our language to include leaders from both parties in the 
decision to trigger the reduced quorum procedure. Their own expert, 
Professor Dellinger, proposed it in the testimony he submitted to the 
Committee. Professor Dellinger's testimony expresses the same concern 
we have outlined in the previous paragraphs. He said: ``For the rule's 
invocation to have true legitimacy, there must also be some procedural 
guarantee that the rule is not being improperly invoked for factional 
reasons.'' Out of his concerns over legitimacy, Professor Dellinger 
went on to ``strongly recommend that the power to invoke the rule be 
placed not solely in the discretion of the Speaker, but rather require 
as well the concurrence of one or more members of the minority party's 
leadership, from a list chosen ahead of time.'' In other words, 
Committee Republicans have explicitly rejected the single most 
important policy recommendation their star witness, Professor 
Dellinger, made in his testimony.

  I think when he used the term ``factional reasons,'' Professor 
Dellinger was choosing his words very carefully. He was no doubt 
referring to James Madison's famous discussion of the dangers of 
faction to the republican form of government in Federalist 10. One of 
the most persistent problems in the governments of his time, Madison 
wrote, was: ``that the public good is disregarded in the conflicts of 
rival parties; and that measures are too often decided, not according 
to the rules of justice, and the rights of the minor party; but by the 
superior force of an interested and over-bearing majority.''
  There is no subject on which it is more important for Congressional 
leaders to set aside their partisan differences and their instinct to 
turn everything into a ``factional'' dispute than the Continuity of 
Congress. Unfortunately, I feel that House Republicans have, at least 
temporarily, succumbed to their partisan instincts and have produced 
bills and resolutions that reflect the ``superior force of an 
interested and over-bearing majority'' rather than a good faith effort 
to protect and preserve the House of Representatives and its 
indispensable role in our constitutional system. In its current form, 
the draft rules change lacks the tools a post-calamity House would need 
to preserve our beloved institution and to demonstrate to the American 
public it has risen above its partisan differences for the sake of our 
Nation. I sincerely hope that a final version of this rules change, 
whether it is adopted in the final days of the 108th Congress or in a 
future Congress, reflects the spirit of unity, patriotism, and duty to 
this House that this issue deserves.
  Mr. McGOVERN. Mr. Speaker, our Constitutional Framers drafted a 
living document that, while not perfect, created a vibrant 
representative democracy. They crafted the Constitution as a document 
that could be improved over the course of history. The Framers 
themselves would probably agree that the Constitution, as originally 
drafted, would not be perfect into perpetuity. Indeed, in Federalist 
43, James Madison states ``that useful alterations will be suggested by 
experience, could not but be foreseen.'' The Framers improved the 
Constitution by amending it with the Bill of Rights. Since this 
important document was signed in 1789, a total of 27 amendments have 
been added.
  As Members of Congress, we take an oath to uphold and defend that 
Constitution. It is our duty to take the proper actions to ensure that 
our democracy and our way of life are preserved for the future. The 
tragic attacks of September 11, 2001, and the threat of future attacks 
require that we ensure that there is a continuity of the government 
created by the Framers.
  Before September 11, 2001, the United States had withstood a civil 
war, attacks on its soil and attacks upon Washington, DC and the 
Capitol itself. But the continuity of government established by the 
Constitution, and the ability of the Congress to fulfill its 
Constitutional duties, has never been more at risk from attack. Today, 
we live with the grim knowledge that a terrorist attack could take 
place again here in the United States and that terrorists may attempt 
to attack and destroy this Capitol Building. And it is with this 
understanding that the Congress must ensure that the government 
established by the Framers continues well into the future.
  The Framers and the Congress, over the past 216 years, created a 
presidential line of succession in case the President is killed or dies 
in office. Article II, section 1, paragraph 6 establishes: the Vice 
President as the next in line to take over the presidency in case the 
President is removed from office for any reason. This same clause also 
gives Congress the power to establish the line of succession beyond the 
Vice President, and the Congress acted by creating this line of 
succession, as established in chapter 3, section 19 of the U.S. Code. 
There are safeguards in the Constitution and established by law should 
a President become unable to fulfill his or her constitutional duties, 
die, or be removed from office. Simply, there is a plan to ensure that 
the executive branch can continue to exist should something happen to 
the President.
  The Constitution also established the bicameral Congress--the House 
of Representatives and the Senate--and established that the House is a 
body that can only be constituted of Members who are directly elected 
by citizens of the United States. The Constitution says that a vacant 
House seat can only

[[Page H7417]]

be filled by direct election, and a seat can only become vacant at the 
end of a 2-year term established in article 1, section 2, paragraph 1 
of the Constitution or with the removal of a Member of Congress either 
by death, resignation, declination, withdrawal, or by expulsion.

  However, as I've already stated, the Framers of the Constitution 
never planned for an event, including an attack on this country, that 
could cause mass death or incapacitation of Members of Congress. After 
September 11th, we need to ask ourselves how we can preserve our 
government, as designed by the Framers, in the wake of a catastrophic 
event. And we need to do so with an eye looking toward the future.
  A key problem created by an attack that kills or incapacitates more 
than half of the Members of Congress actually lies in the way a quorum 
of the House is defined. It may sound arcane to some, but establishing 
a quorum is vital to the way our government works. If the House were 
not able to establish a quorum, this body could not vote on 
legislation. In the wake of a catastrophe, the House must be able to 
act. However, without a quorum, the U.S. government could grind to a 
halt until a quorum is actually established. In other words, if this 
country were attacked again and the House could not establish a quorum, 
we could not pass important legislation like emergency appropriations, 
improvements to already established security laws, or even a 
declaration of war.
  At the beginning of the 108th Congress, the House enacted an 
important rule change that codified a long-standing House precedent 
allowing the Speaker of the House to reduce the number of the quorum by 
one for each vacant seat in the House. This rule change took place with 
the adoption of H. Res. 5, the resolution adopting the Rules of the 
House for the 108th Congress.
  The codification of this precedent is important, but it does not 
address the problem of incapacitation. If any number of Members of 
Congress were killed in a terrorist attack, this new rule change would 
allow the Speaker to reduce the whole number of the House that 
determines a quorum. But what would happen if an attack occurred in the 
United States and more than 218 Members were alive but not able to 
return to the House chamber to vote? The reasons for this could be 
anything from an attack that results in over 218 unconscious Members to 
a breakdown in the transportation system preventing Members of Congress 
from returning to Washington.
  While this issue may not seem important compared to the issues that 
dominate the news these days--the continued instability and rising 
death toll in Iraq, the economic challenges in this country, and the 
presidential race, just to name a few--this is something the House of 
Representatives must address. Continuity of Congress, the ability to 
preserve the American government as established by the Framers in the 
Constitution, is an issue that transcends partisan politics and while 
we must take action to persevere the continuity of Congress, it is 
essential that we do so in a bipartisan way.
  I strongly believe the House must act on continuity of Congress in a 
bipartisan fashion. There cannot be any other way for the House to act 
and for those actions to be considered legitimate. Simply, any rule 
change of this magnitude must transcend partisan politics.
  But I must express my concerns with the public consideration and 
discussion of this issue and with the current draft that attempts to 
address incapacitation and a provisional quorum. I want to clarify that 
I am not making these statements as a Democrat or as a Member of the 
minority party. Rather, I am making these comments as one Member of 
Congress committed to defending the Constitution and protecting this 
institution and this country.

  Mr. Speaker, I am dismayed that the Rules Committee only held one 
hearing on this issue. To Chairman Dreier's credit, the panel was 
distinguished, and the discussion was fairly comprehensive. But the 
reality is that one hearing on this issue is inadequate. We heard from 
then-Parliamentarian Charlie Johnson and members of his staff, former 
acting Solicitor General of the United States Walter Dellinger, and the 
Attending Physician of the House, Dr. John F. Eisold. While the 
discussion was lively, I don't believe it explored the topic of 
incapacitation to the fullest extent possible.
  I am most concerned about Professor Dellinger's testimony. 
Unfortunately, the Republican majority on the Rules Committee decided 
to invite only one outside witness--Professor Dellinger. This witness, 
while well-informed and knowledgeable on this subject, was clearly 
brought in to validate the majority's views. No other outside witnesses 
were invited to testify.
  Professor Dellinger is of the opinion that to address the problem of 
incapacitation, we only need to amend the quorum requirements in House 
rule XX. There are other experts, constitutional scholars and other 
lawyers including some congressional staff, who believe that such a 
change is unconstitutional and that the only way to change the quorum 
requirement is to amend the Constitution.
  Amending the Constitution is serious business. Like Madison, I 
believe that amending the Constitution should be based on experience, 
and I strongly believe amending the Constitution should not be a knee-
jerk reaction to a perceived problem. But unlike other proposed 
constitutional amendments that have been proposed in this Congress, the 
constitutional amendment to preserve the continuity of Congress, and 
the continuity of the American government as a whole, raises important 
concerns and deserves to have a thorough hearing and thoughtful 
discussion. Of course, the devil is in the details and the specific 
language of any proposed amendment is vital. But preserving this 
country as it was founded is one of our responsibilities as 
Representatives of the American people. I want to make clear that I'm 
not advocating for or against a constitutional amendment, but only that 
I believe it is a topic that deserves a fair and comprehensive hearing.
  Unfortunately, it appears that the Chairman and some members of the 
Rules Committee and the Republican leadership have come to the 
conclusion--without comprehensive hearings--that a constitutional 
amendment is not needed and that all we need to address these 
challenges is a change in the quorum definition in the House Rules.
  Along with my concerns that the Rules Committee only held one 
hearing, Professor Dellinger said something else that I fully support 
but, unfortunately, confirms to me that this process started off on the 
wrong foot. In his testimony, Professor Dellinger said that any change 
in the House Rules must be bipartisan and that there must be a 
bipartisan consensus before any change is made. Unfortunately, the 
Republican majority on the Rules Committee decided to share a draft of 
the proposed rule change with Professor Dellinger prior to the sharing 
it with the Democrats on the Committee. I, for one, don't think such 
secrecy is considered bipartisan. I, however, believe that this is 
water under the bridge and that we must move past such events and deal 
with the issue at hand, which is guaranteeing the continuity of 
Congress in case of a catastrophic terrorist attack. I believe we still 
can work together and produce a true, bipartisan rule change.

  Mr. Speaker, Chairman Dreier and his staff have drafted a proposed 
rule change that, except for one provision, is a good proposal. I am 
pleased that this proposed change has language defining the 
circumstances under which this process can be invoked. This proposal 
includes time limitations on the calls of the House required to 
determine whether there is a real quorum in the House. Should a quorum 
not be attained, the Sergeant-at-Arms will compile a report documenting 
the status of every Member currently elected to the House. I believe 
these are all good provisions and I'm pleased that Chairman Dreier and 
the Republican leadership worked with the Democratic staff to improve 
these provisions over the past few months.
  However, the proposed rule change, as currently drafted, allows the 
Speaker of the House, after he receives the catastrophic quorum failure 
report from the Sergeant-at-Arms, to unilaterally declare that a quorum 
has not been attained and begin the process to reduce the total number 
of Members required for a quorum under catastrophic circumstances. The 
latest draft shared with me requires the speaker to consult with the 
majority leader and the minority leader on the content of the report, 
but it does not require that the concurrence of the speaker, majority 
leader and minority leader.
  Mr. Speaker, I cannot support this proposal without the inclusion of 
``concurrence'' of the speaker, majority leader, and minority leader.
  The need for concurrence of both parties in the House is not just a 
partisan statement made by a Member from the minority party, but a real 
concern made by someone who reveres and respects this institution. And 
I'm not the only person who believes this. I want to read directly from 
Professor Dellinger's prepared testimony before the Rules Committee on 
April 29, 2004:

       For the rule's invocation to have true legitimacy, there 
     must also be some procedural guarantee that the rule is not 
     being improperly invoked for factional reasons. Unlike the 
     traditional rule, where the quorum calculation is based on 
     strictly objective measures such as death, the reduced quorum 
     rule for extraordinary circumstances would be based on less 
     clear-cut circumstances, presenting a heightened danger of 
     manipulation. This loss of objective standards may be 
     necessary in order to deal with the special problem the rule 
     is designed to address; but Congress should certainly take 
     care to minimize the risk of manipulation. For that reason, I 
     strongly recommend that the power to invoke the rule be 
     placed not solely in the discretion of the Speaker, but 
     rather require as well the concurrence of one or more members 
     of the minority party's leadership, from a list chosen ahead 
     of time.

[[Page H7418]]

     This need not be viewed as an encroachment on the Speaker's 
     or the majority party's authority.

  There is a real danger that, after an attack or other national 
catastrophe, any action taken by the speaker without the concurrence of 
the minority leader could have the perception of partisan politics. 
This is true no matter which party controls a majority of seats in the 
House.
  In times of crisis, any action by the House of Representatives must 
be bipartisan. There cannot be any perception that the majority is 
using any tool as part of a partisan power grab. The American public 
wants to be reassured that the House is acting in the best public 
interest; they want partisan politics to be put aside during a national 
crisis. They simply want to be safe, secure, and reassured that the 
American government will respond to their needs.
  After September 11, 2001, the House came together and acted as one 
unified body. We put partisan politics aside. We held joint press 
conferences, we received joint briefings, and we conducted joint 
strategy meetings. Unanimity and consensus is vital during a national 
crisis. The unified message and unified actions--the one voice--coming 
from the House of Representatives after September 11, 2001 was 
reassuring to the American people.
  Any action taken by the speaker of the House--irrespective of that 
speaker's party--that is not taken with the concurrence of the minority 
leader could be seen as inappropriate by the American people.
  Requiring the concurrence of the minority leader puts the needs of 
the country ahead of the threat of partisan politics, and it is a 
necessary protection against anyone who may want to abuse our democracy 
during a time of national crisis.
  Mr. Speaker, although I'm disappointed that it's taken this long to 
act on the issue of incapacitation--it's been over 3 years since the 
attacks of September 11--I'm pleased that the Rules Committee is 
finally acting on this important issue. I hope the chairman and the 
Rules Committee will look to the future, and realize that concurrence 
is an important part of this process that it is vital to show the 
American people that the Congress can put partisan politics aside in 
the time of crisis.
  I want to thank the chairman for organizing this special order 
tonight. I look forward to working with him on this issue, and I hope 
he will take my views--and those of my Democratic colleagues on the 
committee--into account as he finalizes this proposal.

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