[Congressional Record Volume 151, Number 53 (Wednesday, April 27, 2005)]
[Senate]
[Pages S4408-S4410]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN:
  S. 920. A bill to amend chapter 1 of title 3, United States Code, 
relating to Presidential succession; to the Committee on Rules and 
Administration.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the bill I am 
introducing today--to amend chapter 1 of title 3, United States Code, 
relating to Presidential succession--be printed in the Record. I also 
ask unanimous consent that the section by section analysis titled 
``Presidential Succession Act of 2005'' and the letter sent to the 
chairmen of the RNC and DNC be printed in the Record.

[[Page S4409]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 920

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Presidential Succession Act 
     of 2005''.

     SEC. 2. PRESIDENTIAL SUCCESSION.

       (a) In General.--Section 19(d) of title 3, United States 
     Code, is amended--
       (1) in paragraph (1), by inserting ``, Secretary of 
     Homeland Security, Ambassador to the United Nations, 
     Ambassador to Great Britain, Ambassador to Russia, Ambassador 
     to China, Ambassador to France'' after ``Secretary of 
     Veterans Affairs'';
       (2) in paragraph (2), by striking ``but not'' and all that 
     follows through the period and inserting ``or until the 
     disability of the President or Vice President is removed.'';
       (3) in paragraph (3)--
       (A) by striking ``be held to constitute'' and inserting 
     ``not require''; and
       (B) by adding at the end the following: ``Such individual 
     shall not receive compensation from holding that office 
     during the period that the individual acts as President under 
     this section, and shall be compensated for that period as 
     provided under subsection (c).''; and
       (4) by adding at the end the following:
       ``(4) This subsection shall apply only to such officers 
     that are--
       ``(A) eligible to the office of President under the 
     Constitution;
       ``(B) appointed to an office listed under paragraph (1), by 
     and with the advice and consent of the Senate, prior to the 
     time the powers and duties of the President devolve to such 
     officer under paragraph (1); and
       ``(C) not under impeachment by the House of Representatives 
     at the time the powers and duties of the office of President 
     devolve upon them.''.
       (b) Conforming Amendments.--Section 19 of title 3, United 
     States Code, is amended--
       (1) in subsection (b), by striking ``as Acting President'' 
     and inserting ``to act as President''; and
       (2) in subsection (e)--
       (A) in the first sentence, by striking ``(a), (b), and 
     (d)'' and inserting ``(a) and (b)''; and
       (B) by striking the second sentence.

     SEC. 3. SENSE OF CONGRESS REGARDING VOTES BY ELECTORS AFTER 
                   DEATH OR INCAPACITY OF NOMINEES.

       It is the sense of Congress that--
       (1) during a Presidential election year, the nominees of 
     each political party for the office of President and Vice 
     President should jointly announce and designate on or before 
     the final day of the convention (or related event) at which 
     they are nominated the individuals for whom the electors of 
     President and Vice President who are pledged to vote for such 
     nominees should give their votes for such offices in the 
     event that such nominees are deceased or permanently 
     incapacitated prior to the date of the meeting of the 
     electors of each State under section 7 of title 3, United 
     States Code;
       (2) in the event a nominee for President is deceased or 
     permanently incapacitated prior to the date referred to in 
     paragraph (1) (but the nominee for Vice President of the same 
     political party is not deceased or permanently 
     incapacitated), the electors of President who are pledged to 
     vote for the nominee should give their votes to the nominee 
     of the same political party for the office of Vice President, 
     and the electors of Vice President who are pledged to vote 
     for the nominee for Vice President should give their votes to 
     the individual designated for such office by the nominees 
     under paragraph (1);
       (3) in the event a nominee for Vice President is deceased 
     or permanently incapacitated prior to the date referred to in 
     paragraph (1) (but the nominee for President of the same 
     political party is not deceased or permanently 
     incapacitated), the electors of Vice President who are 
     pledged to vote for such nominee should give their votes to 
     the individual designated for such office by the nominees 
     under paragraph (1);
       (4) in the event that both the nominee for President and 
     the nominee for Vice President of the same political party 
     are deceased or permanently incapacitated prior to the date 
     referred to in paragraph (1), the electors of President and 
     Vice President who are pledged to vote for such nominees 
     should vote for the individuals designated for each such 
     office by the nominees under paragraph (1); and
       (5) political parties should establish rules and procedures 
     consistent with the procedures described in the preceding 
     paragraphs, including procedures to obtain written pledges 
     from electors to vote in the manner described in such 
     paragraphs.

     SEC. 4. SENSE OF CONGRESS ON THE CONTINUITY OF GOVERNMENT AND 
                   THE SMOOTH TRANSITION OF EXECUTIVE POWER.

       It is the sense of Congress that during the period 
     preceding the end of a term of office in which a President 
     will not be serving a succeeding term--
       (1) that President should consider submitting the 
     nominations of individuals to the Senate who are selected by 
     the President-elect for offices that fall within the line of 
     succession;
       (2) the Senate should consider conducting confirmation 
     proceedings and votes on the nominations described under 
     paragraph (1), to the extent determined appropriate by the 
     Senate, between January 3 and January 20 before the 
     Inauguration; and
       (3) that President should consider agreeing to sign and 
     deliver commissions for all approved nominations on January 
     20 before the Inauguration to ensure continuity of 
     Government.

                      Section-by-Section Analysis

       The Presidential Succession Act of 2005--introduced by U.S. 
     Senator John Cornyn (R-TX) and U.S, Representative Brad 
     Sherman (D-CA) on April 27, 2005--makes a number of 
     significant improvements to the current Presidential 
     Succession Act, in order to ensure the continuity of the 
     Presidency in the event of a terrorist attack or other 
     crisis. This legislation implements Article II, Section 1, 
     Clause 6 of the U.S. Constitution, which provides that ``the 
     Congress may by Law provide for the Case of Removal, Death, 
     Resignation or Inability, both of the President and Vice 
     President, declaring what Officer shall then act as 
     President, and such Officer shall act accordingly, until the 
     Disability be removed, or a President shall be elected.''
       This legislation is a more modest version of two bills 
     introduced by Senator Cornyn and Representative Sherman in 
     the last Congress to reform the Presidential Succession Act. 
     Because many constitutional experts believe that members of 
     Congress are constitutionally ineligible to serve in the line 
     of succession, both S. 2073 and H.R. 2749 would have 
     addressed a potential constitutional crisis by removing the 
     House Speaker and Senate President pro tempore from the line 
     of succession. By contrast, the 2005 version of the bill does 
     not attempt to address that particular controversy, but 
     instead leaves the Speaker and President pro tempore in the 
     line of succession. It is hoped that Congress will enact the 
     Presidential Succession Act of 2005 quickly, and that the 
     more controversial but nevertheless critical constitutional 
     issues arising out of current law can be addressed as well 
     through separate legislation.


                        Section 1. Short title.

            Section 2. Presidential Succession Act reforms.

       Amending the line of succession. This provision adds the 
     Secretary of Homeland Security to the line of succession. 
     Under current law, the Secretary of Homeland Security does 
     not fall within the line of succession. During the 108th 
     Congress, the Senate approved legislation to place the 
     Secretary of Homeland Security right behind the Attorney 
     General in the line of succession, but that proposal ran into 
     opposition in the House. This provision attempts to avoid 
     that controversy by placing the Secretary of Homeland 
     Security at the end of the current line of succession.
       In addition, this provision addresses the difficulty that 
     arises from the fact that all current members of the line of 
     succession generally work and live in the greater Washington, 
     D.C. area. Due to current law, a catastrophic incident in the 
     D.C. area could theoretically eliminate the entire line of 
     succession and leave the nation without anyone legally 
     eligible to serve as President for an extended period of 
     time. Accordingly, this provisions adds at the end of line of 
     succession senior federal officials who do not generally work 
     and live in the D.C. area specifically, the U.S. Ambassador 
     to the United Nations and the U.S. Ambassadors to each of the 
     four other permanent members of the U.N. Security Council 
     (Great Britain, Russia, China, and France).
       Reforming Cabinet succession. This provision eliminates the 
     requirement that a cabinet secretary must resign in order to 
     succeed to the Presidency. By doing so, this provision 
     helps ensure that a cabinet secretary will not hesitate to 
     take the reins, by ensuring that there will be a cabinet 
     position to which the officer may return after any period 
     of service as Acting President. This provision also helps 
     cure a potential constitutional defect in current law; 
     some constitutional scholars argue that only a current 
     ``officer'' may act as President under Article II.
       In addition, this provision addresses the so-called 
     ``bumping off'' problem in current law. The current 
     Presidential succession statute puts the Executive Branch in 
     a precarious position vis-a-vis Congress, because it allows 
     the House Speaker or Senate President pro tempore to assert 
     their right under current law to take over the reins at any 
     time from a cabinet officer who holds office as Acting 
     President. This aspect of current law raises serious 
     constitutional separation of powers problems, because it 
     effectively places the Presidency at the mercy of 
     Congressional leaders. In addition, current law raises a 
     potential constitutional problem because Article II, Section 
     1, Clause 6 of the U.S. Constitution states that any officer 
     who shall act as President ``shall act accordingly, until the 
     Disability be removed, or a President shall be elected.'' 
     This provision eliminates this ``bumping off'' problem in 
     current law by eliminating the ability of the House Speaker 
     or Senate President pro tempore to assert their right under 
     current law to take over the reins from a cabinet officer 
     holding office as Acting President.
       Finally, this provision ensures that only individuals who 
     are actually confirmed to the Cabinet-level office are 
     eligible to serve in the line of succession. By doing so, 
     this provision prevents lower-level officers who rise to the 
     position of an acting Cabinet secretary from then acting as 
     President.

[[Page S4410]]

       Section 3. Presidential succession during the Presidential 
     selection process. This provision states the sense of 
     Congress that steps must be taken to ensure smooth 
     Presidential succession in the event of a crisis during the 
     Presidential selection process. The provision states that, 
     prior to their political party's nominating conventions, 
     candidates for President and Vice President should announce 
     individuals who should be chosen by members of the Electoral 
     College in the event that either the Presidential or Vice 
     Presidential nominee is killed or permanently incapacitated 
     prior to the Electoral College vote. The provision also 
     advises the political parties to craft rules and procedures 
     consistent with these principles.
       Section 4. Presidential succession during the Presidential 
     transition. This provision is modeled after S. Con. Res. 89 
     and H. Res. 775 from the last Congress. It states the sense 
     of Congress that, in the event of the election of a new 
     President, the outgoing Administration and incoming 
     Administration should work together to ensure a smooth 
     transition. Under current law, in the event of a terrorist 
     attack on the inauguration or other crisis, a member of the 
     prior Administration could theoretically rise to serve as 
     Acting President, because new Cabinet officers may have not 
     yet been nominated, confirmed, and appointed by that time. 
     Accordingly, this provision calls for cooperation between 
     outgoing and incoming Administrations to achieve smooth 
     Presidential transitions. It recommends that the outgoing 
     President nominate the individuals selected by the incoming 
     President for offices that fall within the line of 
     succession, it advises the Senate to act on those nominees to 
     the extent it deems appropriate prior to the inaugural event 
     on January 20, and finally, it recommends that the outgoing 
     President appoint confirmed individuals to their posts on 
     January 20 before the inaugural event.
                                  ____



                                Congress of the United States,

                                   Washington, DC, April 27, 2005.
     Chairman Ken Mehlman,
     Republican National Committee,
     Washington, DC.
     Chairman Howard Dean,
     Democratic National Committee,
     Washington, DC.
       Dear Chairman Mehlman and Chairman Dean: This morning, we 
     introduce the Presidential Succession Act of 2005, to update 
     the existing Presidential Succession Act of 1947. The bill 
     addresses some of the most pressing problems in the current 
     law to ensure that, should tragedy strike, the nation will 
     have a clear and legitimate president.
       One of the primary areas of concern is the period between 
     the nominating conventions and the casting of Electoral. 
     votes. Should a presidential or vice-presidential nominee be 
     unable to proceed as a nominee between these two events, 
     general election voters and electors would face great 
     uncertainty about their votes. We are concerned about the 
     potential mischief and instability in our government that 
     could arise in such event.
       We have attached language from the Presidential Succession 
     act of 2005 which calls on political parties to address this 
     issue with appropriate party rules changes and public 
     declarations. Specifically, these changes would call upon the 
     presidential and vice-presidential nominees to jointly name 
     successors should tragedy occur. If only the presidential 
     nominee is unable to continue in an election, the vice 
     presidential nominee would become the presidential nominee.
       There is no reason for the political parties to await 
     Congressional action. The vagaries of current party rules can 
     be solved much sooner. We call on you to take action.
       Should you have questions or need additional information, 
     please do not hesitate to contact us.
           Sincerely,
                                                      John Cornyn,
                                             United States Senate.
                                                     Brad Sherman,
                           United States House of Representatives.
                                 ______