[House Report 108-503]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-503

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



 
    PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES 
REGARDING THE APPOINTMENT OF INDIVIDUALS TO FILL VACANCIES IN THE HOUSE 
                           OF REPRESENTATIVES

                                _______
                                

May 19, 2004.--Referred to the House Calendar and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                             ADVERSE REPORT

                             together with

                            DISSENTING VIEWS

                      [To accompany H.J. Res. 83]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
joint resolution (H.J. Res. 83) proposing an amendment to the 
Constitution of the United States regarding the appointment of 
individuals to fill vacancies in the House of Representatives, 
having considered the same, report unfavorably thereon without 
amendment and recommend that the joint resolution do not pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................    12
Committee Consideration..........................................    12
Vote of the Committee............................................    12
Committee Oversight Findings.....................................    15
New Budget Authority and Tax Expenditures........................    15
Congressional Budget Office Cost Estimate........................    15
Performance Goals and Objectives.................................    16
Constitutional Authority Statement...............................    16
Section-by-Section Analysis and Discussion.......................    16
Changes in Existing Law Made by the Bill, as Reported............    17
Markup Transcript................................................    18
Dissenting Views.................................................    53

                          Purpose and Summary

    The debate over constitutional amendments, like H.J. Res. 
83, that allow appointed House Members in the wake of mass 
vacancies caused by a terrorist attack is a debate between 
those who would preserve a House of Representatives elected by 
the people, and those who would deny Americans the right to 
elected representation and place them under laws enacted by an 
appointed regime during the most crucial moments of American 
history. It is a debate between, on the one hand, the popular 
will, the essential right to elected representation, and the 
institutional legitimacy of the House of Representatives and, 
on the other hand, rule by an appointed aristocracy that owes 
its allegiance not to the people, but to those doing the 
appointing. Because the Committee rejects the notion of an 
appointed House, it reports H.J. Res. 83 adversely.

                               Background

    H.J. Res. 83 and other constitutional amendments denying 
the right to elected representation would accomplish what no 
terrorist could, namely striking a fatal blow to what has 
otherwise always been ``The People's House.'' The House--unlike 
the Presidency \1\ and the Senate \2\ and unique among all 
branches and bodies of the entire Federal Government--is the 
only branch institutionally designed to always reflect the 
popular will.\3\ H.J. Res. 83 and similar proposed 
constitutional amendments would allow legislation to be passed 
and habeas corpus (essentially the right to judicial review of 
illegal detentions) \4\ to be suspended by a Congress \5\ 
composed entirely of the unelected.
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    \1\ See U.S. Const. Art. II, Section 1, cl. 6 (``. . . 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.''); 3 U.S.C. Sec. 19(d)(1) (setting out list of presidential 
successors, including the following cabinet members: the Secretary of 
State, Secretary of the Treasury, Secretary of Defense, Attorney 
General, Secretary of the Interior, Secretary of Agriculture, Secretary 
of Commerce, Secretary of Labor, Secretary of Health and Human 
Services, Secretary of Housing and Urban Development, Secretary of 
Transportation, Secretary of Energy, Secretary of Education, and 
Secretary of Veterans Affairs).
    \2\ See U.S. Const. Amend. XVII (``When vacancies happen in the 
representation of any State in the Senate, the executive authority of 
such State shall issue writs of election to fill such vacancies: 
Provided, That the Legislature of any State may empower the Executive 
thereof to make temporary appointments until the people fill the 
vacancies by election as the Legislature may direct.''). The Senatorial 
vacancies provision was placed in the original Constitution because 
Senators, prior to the adoption of the Seventeenth Amendment that 
provided for the popular election of Senators, were elected by state 
legislatures, which were often only in session for several months at a 
time. See Joseph Story, A Familiar Exposition of the Constitution of 
the United States (Regnery Gateway: 1986) at 96. Article I, Section 3, 
of the Constitution as originally enacted provided that ``The Senate of 
the United States shall be composed of two Senators from each State, 
chosen by the legislature thereof . . . if vacancies happen [in the 
Senate] by Resignation, or otherwise, during the recess of the 
Legislature of any State, the Executive thereof may make temporary 
Appointments until the next meeting of the Legislature, which shall 
then fill such Vacancies.'' The Seventeenth Amendment, which provided 
for the popular election of Senators, simply carried over the concept 
of state governors' appointment authority. Because it was the prospect 
of filling only occasional Senate vacancies, and not mass vacancies, by 
gubernatorial appointment that motivated passage of the Senate 
vacancies provisions, the application of the current Senate vacancies 
provision in the event of mass vacancies was unanticipated and is 
arguably in itself a constitutional flaw, as its application to mass 
vacancies would largely negate the motivation behind passage of the 
Seventeenth Amendment, namely a change in the Senate's fundamental 
character to a popularly-elected body. Adopting an amendment that also 
allows mass vacancies in the House to be filled by appointment would 
compound that constitutional flaw by extending it to the House of 
Representatives.
    \3\ See U.S. Const. Art. I, Section 2, cls. 1, 4 (``The House of 
Representatives shall be composed of Members chosen . . . by the People 
of the several States . . . When vacancies happen in the Representation 
from any State, the Executive Authority thereof shall issue Writs of 
Election to fill such Vacancies.'').
    \4\ See Black's Law Dictionary (7th ed. 1999) (``habeas corpus . . 
. A writ employed to bring a person before a court, most frequently to 
ensure that the party's imprisonment or detention is not illegal . . 
.'').
    \5\ See U.S. Const. Art. I, Section 9, cl. 2 (``The Privilege of 
the Writ of Habeas Corpus shall not be suspended, unless when in Cases 
of Rebellion or Invasion the public Safety may require it.'').
---------------------------------------------------------------------------
    When terrorists attacked on September 11, 2001, it was an 
elected--not an appointed--Congress that acted in the wake of 
the attack, and the legislation passed by that elected Congress 
has a legitimacy that legislation passed by an appointed 
Congress would not have had. All of Congress's powers under 
Article I of the Constitution are only legitimately exercised 
by an elected House of Representatives. It would hardly be 
reassuring to the public to see, immediately following a 
devastating attack, the faces of hundreds of strangers writing 
the laws. Legislation passed by an appointed House that did not 
comport with the people's will would have to be repealed by a 
later-elected House, leading to further discontinuity at the 
very time continuity is most important.
    Demonstrating that this is not a partisan issue, but one 
concerning the legitimacy of all Members of the House and of 
the legislation it passes, the House of Representatives in the 
past has rejected all constitutional amendments authorizing 
appointed House Members sent to it by the Senate, even during 
the height of the Cold War. The Houses of Representatives that 
rejected such amendments were controlled by Republicans in the 
83rd Congress, and by Democrats in the 84th and 87th 
Congresses.\6\
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    \6\ In 1960, the Senate sent to the House a constitutional 
amendment allowing the District of Columbia electoral votes in 
presidential elections which had attached to it another constitutional 
amendment allowing appointed House Members in the event of mass 
vacancies. The House specifically stripped out the constitutional 
amendment allowing appointed House Members, and sent the rest back to 
the Senate in modified form, which became the Twenty-third Amendment. 
See generally Sula P. Richardson and Paul S. Rundquist, Congressional 
Research Service, CRS Report to Congress, House Vacancies: Proposed 
Constitutional Amendments for Filling Them Due to National Emergencies 
(April 16, 2004) at 8-9 (discussing history of previously proposed 
constitutional amendments allowing an appointed House).
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 H.J. RES. 83 AND OTHER CONSTITUTIONAL AMENDMENTS THAT ALLOW APPOINTED 
MEMBERS UNDERMINE ESSENTIAL CONSTITUTIONAL RIGHTS AND THE BASIS OF OUR 
                      NATION'S FOUNDING DOCUMENTS

    Article I of the Constitution states ``The House of 
Representatives shall be composed of Members chosen . . . by 
the People of the several States . . . When vacancies happen in 
the Representation from any State, the Executive Authority 
thereof shall issue Writs of Election to fill such Vacancies.''
    The Founders of our great nation were perhaps the most 
gifted political thinkers the world has ever known. They 
carefully crafted a republic in the Constitution and they 
articulated their defense of that document to the voters in the 
ratifying states in a series of newspaper articles that became 
known as the Federalist Papers. Not only did the Founders 
emphatically insist on the right to elected representation, the 
Founders also explicitly rejected the proposition that the 
appointment of Members is compatible with the American 
republic. In Federalist No. 52, James Madison stated:

        The definition of the right of suffrage is very justly 
        regarded as a fundamental article of republican 
        government. It was incumbent on the [Constitutional] 
        convention, therefore, to define and establish this 
        right in the Constitution. To have left it open for the 
        occasional regulation of the Congress, would have been 
        improper for the reason just mentioned.\7\
---------------------------------------------------------------------------
    \7\ Federalist No. 52 (Madison) at 326 (Clinton Rossiter ed., 1961) 
(emphasis added).

    Further, in his ``Speech in the Federal Convention on 
---------------------------------------------------------------------------
Suffrage,'' Madison stated:

        The right of suffrage is certainly one of the 
        fundamental articles of republican Government, and 
        ought not to be regulated by the Legislature. A gradual 
        abridgement of this right has been the mode in which 
        Aristocracies have been built on the ruins of popular 
        forms.\8\
---------------------------------------------------------------------------
    \8\ James Madison, ``Speech in the Federal Convention on 
Suffrage,'' (August 7, 1787) reprinted in James Madison: Writings (Jack 
N. Rakove, ed. 1999) at 132.

    Constitutional amendments that would allow vacant House 
seats to be filled by appointment were explicitly rejected by 
the Founders as antithetical to republican government, and a 
``republican form of government'' is guaranteed in the 
Constitution.\9\ As James Madison made clear, that means a form 
of government under rules passed by the duly elected 
representatives of the people.
---------------------------------------------------------------------------
    \9\ See U.S. Const. Art. IV, Section 4 (``The United States shall 
guarantee to every State in this Union a Republican Form of 
Government.'').
---------------------------------------------------------------------------
    Over and over, the Founders reiterated the foundational 
importance of the right to elected representation.
    In Federalist No. 35, Alexander Hamilton wrote:

        Is it not natural that a man who is a candidate for the 
        favor of the people, and who is dependent on the 
        suffrages of his fellow-citizens for the continuance of 
        his public honors, should take care to inform himself 
        of their dispositions and inclinations, and should be 
        willing to allow them their proper degree of influence 
        upon his conduct? This dependence [constitutes] the 
        strong chords of sympathy between the representative 
        and the constituent.\10\
---------------------------------------------------------------------------
    \10\ Federalist No. 35 (Hamilton), at 216 (Clinton Rossiter ed., 
1961).

    In Federalist No. 39, James Madison wrote that ``The House 
of Representatives . . . is elected immediately by the great 
body of the people . . . The House of Representatives will 
derive its powers from the people of America.'' \11\ Madison 
also wrote that:
---------------------------------------------------------------------------
    \11\ Id. at 242, 244.

        If the plan of the [Constitutional] convention, 
        therefore, be found to depart from the republican 
        character, its advocates must abandon it as no longer 
        defensible . . . What, then, are the distinctive 
        characters of the republican form [of government]? . . 
        . It is essential to such a government that it be 
        derived from the great body of the society, not from an 
        inconsiderable proportion, or a favored class of it . . 
        .\12\
---------------------------------------------------------------------------
    \12\ Id. at 240-41 (emphasis in original).

    Madison used the strongest of terms when stating the House 
must be composed only of those elected by the people. Madison 
---------------------------------------------------------------------------
wrote in Federalist No. 52 that:

        As it is essential to liberty that the government in 
        general should have a common interest with the people, 
        so it is particularly essential that the [House] should 
        have an immediate dependence on, and an intimate 
        sympathy with, the people. Frequent elections are 
        unquestionably the only policy by which this dependence 
        and sympathy can be effectually secured.'' \13\
---------------------------------------------------------------------------
    \13\ Id. at 327 (emphasis added).

    Madison refers to the ``requisite dependence of the House 
of Representatives on their constituents.\14\
---------------------------------------------------------------------------
    \14\ Id. at 328.
---------------------------------------------------------------------------
    In Federalist No. 57, Madison wrote:

        Who are to be the electors of the Federal 
        representatives? Not the rich, more than the poor; not 
        the learned, more than the ignorant; not the haughty 
        heirs of distinguished names, more than the humble sons 
        of obscurity and unpropitious fortune. The electors are 
        to be the great body of the people of the United 
        States.\15\
---------------------------------------------------------------------------
    \15\ Id. at 351.

    Madison also wrote that ``The elective mode of obtaining 
rulers is the characteristic policy of republican government'' 
\16\ and that ``[i]f we consider the situation of the men on 
whom the free suffrages of their fellow-citizens may confer the 
representative trust, we shall find it involving every security 
which can be devised or desired for their fidelity to their 
constituents.'' \17\ Madison concluded that ``[a]ll these 
securities'' of a free government ``would be found very 
insufficient without the restraint of . . . elections,'' \18\ 
and he summed up his reflections as follows: ``Such will be the 
relation between the House of Representatives and their 
constituents. Duty, gratitude, interest, ambition itself, are 
the chords by which they will be bound to fidelity and sympathy 
with the great mass of the people.'' \19\
---------------------------------------------------------------------------
    \16\ Id.
    \17\ Id.
    \18\ Id. at 352.
    \19\ Id. at 353.
---------------------------------------------------------------------------
    Further, from the notes James Madison kept of the debates 
at the Constitutional Convention, it is clear that House 
elections were considered indispensable to legitimate 
government. According to those notes, Madison ``considered the 
popular election of one branch of the National Legislature as 
essential to every plan of free Government . . . He thought too 
that the great fabric to be raised would be more stable and 
durable, if it should rest on the solid foundation of the 
people themselves . . .'' \20\ Madison also ``considered an 
election of one branch at least of the Legislature by the 
people immediately, as a clear principle of free Govt. and that 
this mode under proper regulations had the additional advantage 
of securing better representatives . . .'' \21\ George Mason
---------------------------------------------------------------------------
    \20\ Debates on the Adoption of the Federal Constitution in the 
Convention Held at Philadelphia in 1787 (Jonathan Elliot, ed. 1845) (as 
reported by James Madison, notes of May 31, 1787) at 137.
    \21\ Id. at 161 (notes of June 6, 1787).

        argued strongly for an election of the larger branch by 
        the people. It was to be the grand depository of the 
        democratic principle of the Govt. It was, so to speak, 
        to be our House of Commons--It ought to know & 
        sympathise with every part of the community; and ought 
        therefore to be taken not only from different parts of 
        the whole republic, but also from different districts 
        of the larger members of it . . .'' \22\
---------------------------------------------------------------------------
    \22\ Id. at 136 (notes of May 31, 1787).

    Mason also ``urged the necessity of retaining the election 
by the people. Whatever inconveniency may attend the democratic 
principle, it must actuate one part of the Govt. It is the only 
security for the rights of the people.'' \23\ James Wilson 
``contended strenuously for drawing the most numerous branch of 
the Legislature immediately from the people. He was for raising 
the Federal pyramid to a considerable altitude, and for that 
reason wished to give it as broad a basis as possible.'' \24\ 
Wilson also ``considered the election of the 1st. branch by the 
people not only as the corner Stone, but as the foundation of 
the fabric [of the Constitution] . . .'' \25\
---------------------------------------------------------------------------
    \23\ Id. at 223 (notes of June 21, 1787).
    \24\ Id. at 136 (notes of May 31, 1787).
    \25\ Id. at 223 (notes of June 21, 1787).
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               H.J. RES. 83 RISKS GRAVE DISCONTINUITY IN 
                       REPRESENTATIVE GOVERNMENT

    H.J. Res. 83 contains all the flaws, discussed previously, 
of amendments allowing the appointment of non-elected Members, 
and has some unique additional problems.\26\
---------------------------------------------------------------------------
    \26\ Other proposed constitutional amendments introduced in the 
108th Congress that would allow lawmaking by an appointed Congress all 
share the fundamental flaw of denying the right to elected 
representation.
---------------------------------------------------------------------------
  H.J. Res. 89, introduced by Rep. John Larson on March 11, 2004, would 
allow state legislatures to appoint replacement House Members, thereby 
turning the House into what the Senate was before the Seventeenth 
Amendment made Senators subject to popular election, namely a body 
composed entirely of unelected Members. The appointment of Members by 
state legislatures was specifically rejected by the Founders at the 
Constitutional Convention. James Madison, for example, according to his 
notes of the Convention Debates on May 31, 1787, successfully argued 
``that, if the first branch of the general legislature [the House] 
should be elected by the State Legislatures . . . the people would be 
lost sight of altogether; and the necessary sympathy between them and 
their rulers and officers, too little felt.'' Debates on the Adoption 
of the Federal Constitution in the Convention Held at Philadelphia in 
1787 (Jonathan Elliot, ed. 1845) (as reported by James Madison, notes 
of May 31, 1787) at 137.
  H.J. Res. 90, introduced by Rep. Zoe Lofgren on March 11, 2004, is an 
open-ended authorizing amendment that makes the right to elected 
representation subject to implementing legislation that could be 
revised by Congress at any time. Such a proposal invites Congress and 
the ratifying states to ``buy a pig-in-a-poke'' because even if such an 
amendment were ratified, Congress could alter its implementing language 
at any time thereafter. Indeed, under Rep. Lofgren's proposed 
amendment, if large numbers of representatives or Senators were killed 
in an attack, the remaining Representatives and Senators could repeal 
any implementing legislation previously enacted and pass legislation 
that would immediately install only persons of their choosing in the 
House.
  H.J. Res. 92, introduced by Rep. Dana Rohrabacher on April 2, 2004, 
provides that any time there were a vacancy in the House, or a Member 
were deemed unable to serve, that Member's seat would be filled by an 
``acting'' Representative drawn from a list of successors the elected 
Member submitted at least 60 days before taking office. The amendment 
bans special elections forever. By providing that ``[a]ppointments 
pursuant to this section shall be effective during the term of office 
for which the person elected as Representative has been elected,'' H.J. 
Res. 92 thereby prohibits special elections from being held at any 
time, permanently banning special elections, even in non-emergency 
circumstances.
    H.R. 2844, the ``Continuity in Representation Act,'' which 
passed the House on April 22, 2004, on an overwhelming 
bipartisan vote of 306-97 (with more Democrats voting for it 
than against it), will ensure that the House is repopulated by 
legitimate democratic means within 45 days after an attack 
causes mass vacancies in the House.\27\ Many states, of course, 
could conclude special elections much sooner.\28\ H.R. 2844 
resonates best with American ideals by providing that, 
following a devastating terrorist attack, millions of people 
around the country might fill schools and gymnasiums, churches 
and meeting halls, and freely exercise--in the wake of terrible 
actions by those who hate self-government--their right to 
elected representation and government under laws enacted by 
elected representatives, a right that has survived 
uninterrupted throughout the history of the United States. 
Within that 45 days in which legitimate elections would be 
conducted under H.R. 2844, any constitutional amendment that 
allowed rule by appointed Members could only present far more 
dangers than benefits.
---------------------------------------------------------------------------
    \27\ See generally H.R. Rep. No. 108-404, Pt. II (2004). The 
Federalist Papers make clear that H.R. 2844--and not proposals to deny 
the right to elected representation--is the approach to preserving 
continuity in government that is consistent with constitutional values 
and principles. Congress has the clear constitutional authority to 
enact H.R. 2844 under Article I, Section 4, clause 1 of the 
Constitution, which states that ``The Times, Places and Manner of 
holding Elections for Senators and Representatives, shall be prescribed 
in each State by the Legislature thereof; but the Congress may at any 
time by Law make or alter such Regulations . . .'' In Smiley v. Holm, 
285 U.S. 355 (1932), the Supreme Court held that ``[i]n exercising this 
power, the Congress may supplement . . . state regulations or may 
substitute its own . . . It has a general supervisory power over the 
whole subject.'' Id. at 366-67 (quotations and citations omitted). The 
Supreme Court described ``the whole subject'' over which Congress has 
general supervisory power as follows: ``The subject-matter is the 
`times, places and manner of holding elections for senators and 
representatives.' It cannot be doubted that these comprehensive words 
embrace authority to provide a complete code for congressional 
elections . . .'' Id. at 366. Also, the House alone has the authority 
to judge the elections of its own Members. Article I, Section 5, clause 
1 of the Constitution provides that ``Each House shall be the Judge of 
the Elections, Returns and Qualifications of its own Members . . .''.
---------------------------------------------------------------------------
  In passing H.R. 2844, the House has acted to uphold the Founders' 
understanding of what is essential to democracy, maintain the 
uninterrupted tradition that only duly elected Members serve in the 
House of Representatives, and preserve the American people's right to 
chosen representatives. Consistent with the right to chosen 
representation, the Founders explicitly considered Congress' power to 
require expedited special elections the solution to potential 
discontinuity in government in emergency situations.
  Contrary to the assertions of some, the Founders did foresee 
scenarios in which large numbers of vacancies were created in Congress, 
and still they defended the necessity of elections to fill such 
vacancies. As Alexander Hamilton wrote in Federalist No. 59, in 
discussing Article I, Section 4, clause 1, ``[The Constitutional 
Convention] have reserved to the national authority a right to 
interpose [in Federal elections], whenever extraordinary circumstances 
might render that interposition necessary to its safety. Nothing can be 
more evident, than that an exclusive power of regulating elections for 
the national government, in the hands of the State legislatures, would 
leave the existence of the Union entirely at their mercy. They could at 
any moment annihilate it, by neglecting to provide for the choice of 
persons to administer its affairs.'' Federalist No. 59 (Hamilton) at 
363 (Clinton Rossiter ed., 1961).
  Hamilton continued in Federalist No. 59: ``The natural order of the 
subject leads us to consider, in this place, that provision of the 
Constitution which authorizes the national legislature to regulate, in 
the last resort, the election of its own members . . . I am greatly 
mistaken, notwithstanding, if there be any article in the whole plan 
more completely defensible than this. Its propriety rests upon the 
evidence of this plain proposition, that every government ought to 
contain in itself the means of its own preservation . . . It will not 
be alleged, that an election law could have been framed and inserted in 
the Constitution, which would have been always applicable to every 
probable change in the situation of the country; and it will therefore 
not be denied, that a discretionary power over elections ought to exist 
somewhere . . .'' Federalist No. 59 (Hamilton) at 361-62 (Clinton 
Rossiter ed., 1961) (emphasis in original).
  H.R. 2844 is founded on clear, existing constitutional authority, and 
it preserves the vital, time-tested constitutional value of elected 
representation that has made this country the most successful 
experiment in self-governance the world has ever known.
---------------------------------------------------------------------------
    \28\ As the Congressional Budget Office has pointed out, 10 states 
require special elections within 45 days in normal circumstances. See 
Congressional Budget Office, Cost Estimate of H.R. 2844 (January 23, 
2004) at 2 (reprinted in H.R. Rep. No. 108-404, Pt. I, at 7 (2003)). 
Minnesota, for example, requires that House vacancies be filled within 
33 days. See Minn. Stat. Sec. 204D.19 (``Special election when the 
congress or legislature will be in session . . . when a vacancy occurs 
and the congress or legislature will be in session so that the 
individual elected as provided by this section could take office and 
exercise the duties of the office immediately upon election, the 
governor shall issue within 5 days after the vacancy occurs a writ 
calling for a special election. The special election shall be held as 
soon as possible . . . but in no event more than 28 days after the 
issuance of the writ.'').
---------------------------------------------------------------------------
    H.J. Res. 83, by providing states with unlimited time in 
which to hold special elections to fill vacancies,\29\ risks 
grave discontinuity in government. H.J. Res. 83 not only would 
override H.R. 2844, but it would forever strip Congress of its 
essential discretionary authority to expedite special elections 
in emergencies under its existing Article I, Section 4, clause 
1 powers.\30\ Further, proposals that allow long periods of 
time in which special elections can occur pose the substantial 
risk that on 1 week, for example, a few Democratic Members will 
arrive at the Capitol to take their seats, giving control of 
the House to Democrats who can elect their own Speaker, but 
then the next week some Republican Members will arrive and 
switch control of the House back to the Republicans, with this 
disruptive process repeating itself, and tipping the balance of 
party control back and forth, for weeks, leading to massive 
discontinuity in government rather than continuity in 
government.
---------------------------------------------------------------------------
    \29\ Section 2 of H.J. Res. 83 broadly allows that ``The State 
shall provide for an election to fill the vacancy at such time and in 
accordance with such procedures as may be provided under State law . . 
.''
    \30\ Article I, Section 4, clause 1 of the Constitution provides 
that ``The Times, Places and Manner of holding Elections for Senators 
and Representatives, shall be prescribed in each State by the 
Legislature thereof; but the Congress may at any time by Law make or 
alter such Regulations . . .'' H.J. Res. 83, Section 2, would provide 
only that ``The State shall provide for an election to fill the vacancy 
at such time and in accordance with such procedures as may be provided 
under State law . . .''. (Emphasis added.)
---------------------------------------------------------------------------
    If--under H.J. Res. 83 and similar proposed constitutional 
amendments--appointed Members are allowed to run in the special 
elections following their appointment, they would be distracted 
by campaign politics at the very moment they are expected to be 
focusing on legislative duties. If--on the other hand--such 
amendments prohibit appointed Members from running in such 
special elections, they would have no institutional connection 
to the popular will.
    H.J. Res. 83 requires House Members, prior to taking the 
oath of office, to submit a list of names to the Governor that 
the Governor can draw from in appointing that Member's 
replacement in the event a majority of House Members cannot 
perform their duties.\31\ This would subject candidates to 
endless questions during their campaigns regarding whom they 
placed on the list and why. In so doing, it would create 
needless distractions during the campaign that would deny the 
voters a clear choice between individual candidates. If a 
candidate announced who was on his or her list, each person on 
the list would be subject to campaign scrutiny. If a candidate 
did not tell the press who was on his or her list, the voters 
would not have any say in who the candidate's potential 
replacements should be. Such a list would also invite great 
mischief by allowing a candidate to secretly place on the list 
the names of people unprepared or unqualified to serve but who 
had contributed large amounts to the candidate's campaign, or 
the names of people to whom the candidate owes political 
favors. Under H.J. Res. 83, each Member can revise the list of 
replacements at any time.\32\ That means that in the event the 
amendment's appointment provisions are triggered, the voters in 
a Member's district could become ``represented'' by someone who 
would act in their name but whom they had no knowledge of and 
no say in electing.
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    \31\ Section 2 of H.J. Res. 93 provides ``If at any time a majority 
of the whole membership of the House of Representatives are unable to 
carry out their duties because of death or incapacity, or if at any 
time the House adopts a resolution declaring that extraordinary 
circumstances exist which threaten the ability of the House to 
represent the interests of the people of the United States, the chief 
executive of any State represented by any Member who is dead or 
incapacitated at that time shall appoint, from the most recent list of 
nominees presented by the Member under section 1, an individual to take 
the place of the Member.''
    \32\ Section 1 of H.J. Res. 83 provides that ``After the individual 
takes the oath of office, the individual may present revised versions 
of the list at any time during the Congress.''
---------------------------------------------------------------------------
    H.J. Res. 83 also provides in Section 4 that ``Congress may 
by law establish the criteria for determining whether a Member 
of the House of Representatives or Senate is dead or 
incapacitated . . .'' This provision would deny the House its 
existing authority to address incapacitation by House rules 
\33\--an authority the House Rules Committee is already 
exercising--and needlessly involve the Senate in how the House 
operates. By doing so, it would unfortunately make addressing 
continuity in government more difficult than it already is.
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    \33\ See U.S. Const. Art. I, Section 5, cl. 2 (``Each House may 
determine the Rules of its Proceedings . . .).
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 H.J. RES. 83, ALONG WITH POSING RISKS TO CONTINUITY IN GOVERNMENT, IS 
                              UNNECESSARY

    Contrary to the claim made by some proponents of 
constitutional amendments, H.J. Res. 83 is not necessary to 
restrain the President in his conduct immediately following a 
catastrophic terrorist attack. Indeed, the Founders made clear 
that the President would always be subject to the threat of 
impeachment by the House of Representatives \34\--either a 
House operating on reduced membership,\35\ or a later fully 
reconstituted House--if the President abused executive 
authority at any time. Alexander Hamilton, in Federalist No. 
66, wrote that ``the powers relating to impeachments are . . . 
an essential check in the hands of that body [the House] upon 
the encroachments of the executive.'' \36\ And of course, no 
law could be enacted by a House operating with only a few 
Members alone, as the approval of a full Senate, filled with 
appointed Senators if necessary, would be required.
---------------------------------------------------------------------------
    \34\ See U.S. Const. Art. I, Section 2, clause 5 (``The House of 
Representatives . . . shall have the sole Power of Impeachment.''); 
U.S. Const. Article II, Section 4, clause 1 (``The President, Vice 
President and all civil Officers of the United States, shall be removed 
from Office on Impeachment for, and Conviction of, Treason, Bribery, or 
other high Crimes and Misdemeanors.'').
    \35\ The House Rules provide that a quorum of the House is a 
majority of those Members duly sworn, elected, and living. House Rule 
XX(5)(c) provides that ``Upon the death, resignation, expulsion, 
disqualification, or removal of a Member, the whole number of the House 
shall be adjusted accordingly. The Speaker shall announce the 
adjustment to the House.''
    \36\ Federalist No. 66, at 402 (Alexander Hamilton) (Clinton 
Rossiter ed. 1961). Hamilton also wrote, in Federalist No. 77, that 
``We have now completed a survey of the structure and powers of the 
executive department, which, I have endeavored to show, combines, as 
far as republican principles will admit, all the requisites to energy. 
The remaining inquiry is: Does it also combine the requisites to 
safety, in a republican sense, a due dependence on the people, a due 
responsibility? The answer to this question has been anticipated in the 
investigation of its other characteristics, and is satisfactorily 
deducible from these circumstances; [including] his being at all times 
liable to impeachment, trial, dismission from office, incapacity to 
serve in any other, and to forfeiture of life and estate by subsequent 
prosecution in the common course of law.'' Federalist No. 77, at 463-64 
(Alexander Hamilton) (Clinton Rossiter ed. 1961) (emphasis added).
---------------------------------------------------------------------------
    Further, Congress would not have to assemble immediately 
after a terrorist attack because Congress has already granted 
the President, by statute, wide authority to act in emergency 
circumstances. Congress has granted the President specific 
statutory authority to use the armed forces as he considers 
necessary to prevent unlawfulness.\37\ Congress has also 
granted the President specific statutory authority to call the 
armed forces into service to enforce Federal law ``as he 
considers necessary to enforce those laws.'' \38\ Congress has 
already granted the President the power to activate many other 
emergency authorities.\39\ And again, any President will know 
that if he or she abuses these authorities, they will be 
subject to impeachment proceedings.
---------------------------------------------------------------------------
    \37\ See 10 U.S.C. Sec. 333 (``The President, by using the militia 
or the armed forces, or both, or by any other means, shall take such 
measures as he considers necessary to suppress, in a State, any 
insurrection, domestic violence, unlawful combination, or conspiracy, 
if it--(1) so hinders the execution of the laws of that State, and of 
the United States within the State, that any part or class of its 
people is deprived of a right, privilege, immunity, or protection named 
in the Constitution and secured by law, and the constituted authorities 
of that State are unable, fail, or refuse to protect that right, 
privilege, or immunity, or to give that protection; or (2) opposes or 
obstructs the execution of the laws of the United States or impedes the 
course of justice under those laws. In any situation covered by clause 
(1), the State shall be considered to have denied the equal protection 
of the laws secured by the Constitution.'').
    \38\ 10 U.S.C. Sec. 332 (``Use of militia and armed forces to 
enforce Federal authority'') (``Whenever the President considers that 
unlawful obstructions, combinations, or assemblages, or rebellion 
against the authority of the United States, make it impracticable to 
enforce the laws of the United States in any State or Territory by the 
ordinary course of judicial proceedings, he may call into Federal 
service such of the militia of any State, and use such of the armed 
forces, as he considers necessary to enforce those laws or to suppress 
the rebellion.'').
    \39\ In accordance with the requirements of the National 
Emergencies Act, 50 U.S.C. Sec. Sec. 1601-1651 (providing for an 
exclusive means by which the President may declare a national 
emergency), the President may activate a variety of statutory 
authorities by declaring a national emergency. The President may also 
declare a national emergency and invoke the International Emergency 
Economic Powers Act (``IEEPA''), 50 U.S.C. Sec. Sec. 1701-1706, and 
order its implementation to block property and prohibit transactions 
with persons who commit, threaten to commit, or support terrorism. The 
President also has the authority, found at 10 U.S.C. Sec. 2808, to 
authorize the Secretary of Defense, in time of declared war or national 
emergency declared by the President, and without regard to any other 
provision of law, to undertake military construction projects and to 
authorize the secretaries of the military departments to undertake such 
construction projects, not otherwise authorized by law, as are 
necessary to support use of the armed forces.
---------------------------------------------------------------------------
    In addition, the Constitution and Federal law clearly allow 
the President to take action to protect the nation without 
congressional approval. The War Powers Act specifically 
recognizes that the President may have to take action to 
protect the nation in situations in which Congress is 
physically unable to meet.\40\ While our Constitution provides 
that only Congress can ``declare war,'' the Framers of our 
Constitution specifically rejected a proposal that would have 
given Congress the power to ``make'' war.\41\ Instead, the 
Framers made the President the Commander-in-Chief.\42\ 
(Congress has not exercised its power to ``declare war'' since 
World War II.)
---------------------------------------------------------------------------
    \40\ See 50 U.S.C. Sec. 1544(b) (``Within sixty calendar days after 
a report is submitted or is required to be submitted pursuant to [this 
Act], the President shall terminate any use of United States Armed 
Forces with respect to which such report was submitted (or required to 
be submitted), unless the Congress (1) has declared war or has enacted 
a specific authorization for such use of United States Armed Forces, 
(2) has extended by law such sixty-day period, or (3) is physically 
unable to meet as a result of an armed attack upon the United 
States.'').
    \41\ See 2 Max Farrand, The Records of the Federal Convention of 
1787, 313, 318-19 (rev. ed. 1937).
    \42\ See U.S. Const. Art. II, Section 2, cl.1 (``The President 
shall be Commander in Chief of the Army and Navy of the United States, 
and of the Militia of the several States, when called into the actual 
Service of the United States . . .''). The Founders also made clear 
that the President alone must have the power to wage war against 
America's enemies. As Alexander Hamilton wrote in Federalist No. 74, 
``Of all the cares or concerns of government, the direction of war most 
peculiarly demands those qualities which distinguish the exercise of 
power by a single hand. The direction of war implies the direction of 
the common strength; and the power of directing and employing the 
common strength, forms a usual and essential part in the definition of 
the executive authority.'' Federalist No. 74, at 447 (Alexander 
Hamilton) (Clinton Rossiter ed. 1961). As Alexander Hamilton stated in 
Federalist No. 23, referring to the common defense, ``it is impossible 
to foresee or define the extent and variety of national exigencies, and 
the corresponding extent and variety of the means which may be 
necessary to satisfy them. The circumstances that endanger the safety 
of nations are infinite, and for this reason no constitutional shackles 
can wisely be imposed on the power to which the care of it is 
committed.'' Federalist No. 23, at 153 (Alexander Hamilton) (Clinton 
Rossiter ed. 1961) (emphasis in original).
---------------------------------------------------------------------------
    Finally, the issue of incapacitated House Members can be 
handled by changes to House rules, and the House Rules 
Committee is already exploring those options.\43\
---------------------------------------------------------------------------
    \43\ The one time the Supreme Court has spoken on the issue of 
Congressional quorums, it granted the House, and even the Speaker of 
the House, enormous discretion to ``count'' Members for purposes of 
determining whether a quorum exists. In United States v. Ballin, 144 
U.S. 1, 6 (1892), the Court was asked to determine whether the Speaker 
of the House could ``count'' for purposes of a quorum Members he 
ascertained were part of a cabal that was simply refusing to answer a 
quorum call in an attempt to deny the House a quorum and stop 
legislative business from going forward. In holding the Speaker could 
count Members who were refusing to answer a quorum call as part of a 
quorum, the Court stated that:

      But how shall the presence of a majority be determined? The 
      constitution has prescribed no method of making this 
      determination, and it is therefore within the competency of 
      the house to prescribe any method which shall be reasonably 
      certain to ascertain the fact. It may prescribe answer to 
      roll-call as the only method of determination; or require 
      the passage of members between tellers, and their count, as 
      the sole test; or the count of the speaker or the clerk, 
      and an announcement from the desk of the names of those who 
---------------------------------------------------------------------------
      are present.

      Id. at 6 (emphasis added).

  The Supreme Court in Ballin was quite emphatic regarding the wide 
latitude it would give the House in determining the rules of its 
proceedings: ``Neither do the advantages or disadvantages, the wisdom 
or folly, of such a rule present any matters for judicial 
consideration. With the courts the question is only one of power. The 
constitution empowers each house to determine its rules of 
proceedings.'' Id. at 5. See also Article I, Sec. 5, clause 2 of the 
Constitution (``Each house may determine the Rules of its Proceedings . 
. .'').
  If the Speaker can take cognizance of Members who are present, but 
not willing to vote, it likely follows that the Speaker can take 
cognizance of Members who are incapacitated, and not able to vote, when 
determining whether or not a quorum of Members exists for purposes of 
conducting House business.

            RESPONSE TO REP. BAIRD'S LETTER OF MAY 13, 2004

    As this report was being prepared, Representative Baird 
sent a letter to Chairman Sensenbrenner and Ranking Member 
Conyers dated May 13, 2004. The letter raises several issues 
that are addressed in the text of this report, and contains 
several misstatements, the most egregious of which are 
addressed here.
    Rep. Baird's letter states that Chairman Sensenbrenner 
asserted that H.J. Res. 83 would ``deny the right to elected 
representation,'' and that such statement is ``false.'' The 
wider quote of Chairman Sensenbrenner in his opening statement 
is that constitutional amendments allowing appointed House 
Members in the wake of mass vacancies caused by a terrorist 
attack ``would deny the right to elected representation during 
the most crucial moments of American history.'' This statement 
is of course self-evidently true: the time closely following a 
terrorist attack would be among the most crucial moments of 
American history, and each moment within that time in which 
Americans are governed by appointed Members would be a denial 
of the right to elected representation.
    Rep. Baird's letter states that ``nothing in H.J. Res. 83 
would'' override H.R. 2844. Section 2 of H.J. Res. 83 would 
amend the Constitution to provide that ``[t]he State shall 
provide for an election to fill the vacancy at such time and in 
accordance with such procedures as may be provided under State 
law . . .'' (Emphasis added.) H.R. 2844 is federal legislation 
that would establish a general 45-day time frame during 
emergencies within which expedited special elections must be 
conducted. H.J. Res. 83 would clearly allow State law to trump 
a congressionally enacted time frame in H.R. 2844.
    Rep. Baird's letter also claims the statement that H.J. 
Res. 83 would ``forever strip Congress of its authority to 
expedite special elections in emergencies under its existing 
constitutional authority'' is a ``fabrication.'' To the 
contrary, the statement is true. Article I, Section 4, clause 1 
of the Constitution provides that ``The Times, Places and 
Manner of holding Elections for Senators and Representatives, 
shall be prescribed in each State by the Legislature thereof; 
but the Congress may at any time by Law make or alter such 
Regulations . . .'' (Emphasis added.) Section 2 of H.J. Res. 83 
would provide that ``[t]he State shall provide for an election 
to fill the vacancy at such time and in accordance with such 
procedures as may be provided under State law . . .'' (Emphasis 
added.) Again, H.J. Res. 83, which would apply in emergency 
circumstances in which there were mass vacancies in the House, 
would clearly allow State law to trump a congressionally 
enacted time frame in H.R. 2844, a time frame that could be 
enacted under Congress's current Article I, Section 4, clause 1 
authority, but which would be trumped by State law were H.J. 
Res. 83 to be ratified as an amendment to the Constitution.
    Rep. Baird's letter cites to what he alleges to be 
``mutually contradictory'' statements regarding how the House 
could function after a catastrophe. Those statements are: ``no 
law could be enacted solely by a House operating with only a 
few Members alone'' and ``[t]here is already a House rule that 
provides that a quorum shall consist of Members who are living. 
During a time of disaster when many Members have died, the 
Speaker can adjust the required quorum to reflect the number of 
Members still living.'' These statements are both true, and 
there is no contradiction. The first statement is that ``no law 
could be enacted solely by a House operating with only a few 
Members alone.'' Certainly no bill that passes the House can 
become a law without being passed by both the House and Senate. 
The second statement states that House rules provide that the 
House can act with a quorum of living Members.\44\ The House 
alone cannot enact legislation, although it can act to pass 
bills from the House with a majority of living Members, and the 
two statements are therefore consistent.
---------------------------------------------------------------------------
    \44\ See House Rule XX(5)(c).
---------------------------------------------------------------------------
    Finally, Rep. Baird's letter states that Chairman 
Sensenbrenner assertion during the markup ``that decisions of 
an appointed Congress would be subject to later challenge'' is 
``self contradictory.'' Rep. Baird's statement apparently is 
based on a false assumption that Chairman Sensenbrenner was 
referring to a constitutional challenge and a mishearing of 
what Chairman Sensenbrenner actually said at the markup of H.J. 
Res. 83. What Chairman Sensenbrenner said was ``legislation 
passed by an appointed House that did not comport with the 
people's will would have to be repealed by a later elected 
House, leading to further discontinuity at the very time 
continuity is most important.''

                                Hearings

    No hearings were held on H.J. Res. 83. The Committee's 
Subcommittee on the Constitution held a hearing on H.J. Res. 
67, a similar amendment to the Constitution of the United 
States sponsored by Rep. Brian Baird, during the 107th Congress 
on February 28, 2002. Testimony was received from Charles 
Tiefer, University of Baltimore School of Law; Harold Relyea, 
Specialist in American National Government, Congressional 
Research Service; M. Miller Baker, McDermott, Will & Emery; and 
Norman Ornstein, Resident Scholar, American Enterprise 
Institute for Public Policy Research, with additional material 
submitted by individuals and organizations.

                        Committee Consideration

    On May 5, 2004, the Committee met in open session and 
adversely reported the joint resolution H.J. Res. 83 without 
amendment by a recorded vote of 17 to 12, a quorum being 
present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the Committee's 
consideration of H.J. Res. 83.
    1. Mr. Chabot made a motion to table Ms. Lofgren's motion 
to postpone consideration of H.J. Res. 83 until May 20, 2004. 
By a rollcall vote of 19 yeas to 12 nays, the motion was agreed 
to.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................                              X
Mr. Wexler......................................................
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             19              12
----------------------------------------------------------------------------------------------------------------

    2. Mr. Chabot made a motion to table Ms. Lofgren's motion 
to further postpone consideration of H.J. Res. 83 until a time 
subsequent to May 20, 2004. By a rollcall vote of 12 yeas to 6 
nays, the motion was agreed to.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................
Mr. Cannon......................................................
Mr. Bachus......................................................
Mr. Hostettler..................................................
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................
Mr. Flake.......................................................
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             12               6
----------------------------------------------------------------------------------------------------------------

    3. Motion to Report Adversely. The motion to report the 
joint resolution, H.J. Res. 83, adversely was agreed to by a 
rollcall vote of 17 yeas to 12 nays.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................                              X
Mr. Wexler......................................................
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             17              12
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this joint resolution 
does not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the joint resolution, H.J. Res. 83, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                       Washington, DC, May 7, 2004.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.J. Res. 83, a joint 
resolution proposing an amendment to the Constitution of the 
United States regarding the appointment of individuals to fill 
vacancies in the House of Representatives.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Matthew 
Pickford (for Federal costs), who can be reached at 226-2860, 
and Sarah Puro (for the State and local impact), who can be 
reached at 225-3220.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.J. Res. 83--A joint resolution proposing an amendment to the 
        Constitution of the United States regarding the appointment of 
        individuals to fill vacancies in the House of Representatives.
    H.J. Res. 83 would propose amending the Constitution to 
provide for the continuity of the House of Representatives if a 
majority of Members become unable to fulfill their 
responsibilities. For it to become effective, the legislatures 
of three-fourths of the states would need to ratify the 
proposed amendment within 7 years. By itself, this resolution 
would have no impact on the Federal budget. If the proposed 
amendment is approved by the States, the Federal Government 
could incur administrative expenses to implement it, but CBO 
estimates that such costs, if any, would be minimal. Enacting 
H.J. Res. 83 would not affect direct spending or revenues.
    H.J. Res. 83 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
and would impose no costs on state, local, or tribal 
governments. Although the amendment could only take effect upon 
approval by three-fourths of the state legislatures, no State 
would be required to take action on the resolution, either to 
reject it or to approve it.
    The CBO staff contacts for this estimate are Deborah Reis 
and Matthew Pickford (for Federal costs), who can be reached at 
226-2860, and Sarah Puro (for the State and local impact), who 
can be reached at 225-3220. This estimate was approved by 
Robert A. Sunshine, Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, the 
performance goal and objective of H.J. Res. 83 would be to 
allow appointed Members of the House of Representatives in the 
event of mass vacancies and emergency circumstances.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article V of the Constitution, which 
provides that the Congress has the authority to propose 
amendments to the Constitution.

               Section-by-Section Analysis and Discussion

    Sec. 1. Section 1 provides that, prior to taking the oath 
of office, an individual who is elected to serve as a Member of 
the House of Representatives for a Congress shall present to 
the chief executive of the State from which the individual is 
elected a list of nominees to take the individual's place in 
the event the individual dies or becomes incapacitated prior to 
the expiration of the individual's term of office. The 
individual shall ensure that the list contains the names of not 
fewer than two nominees, each of whom shall meet the 
qualifications for service as a Member of the House of 
Representatives from the State involved. After the individual 
takes the oath of office, the individual may present revised 
versions of the list at any time during the Congress. These 
provisions would deny the right to government under laws 
enacted by elected representatives.
    Sec. 2. Section 2 provides that if at any time a majority 
of the whole membership of the House of Representatives are 
unable to carry out their duties because of death or 
incapacity, or if at any time the House adopts a resolution 
declaring that extraordinary circumstances exist which threaten 
the ability of the House to represent the interests of the 
people of the United States, the chief executive of any State 
represented by any Member who is dead or incapacitated at that 
time shall appoint, from the most recent list of nominees 
presented by the Member under Sec. 1, an individual to take the 
place of the Member. The chief executive shall make such an 
appointment as soon as practicable (but in no event later than 
7 days) after the date on which Member's death or incapacity 
has been certified. An individual appointed to take the place 
of a Member of the House of Representatives under this section 
shall serve until the Member regains capacity or until another 
Member is elected to fill the vacancy resulting from the death 
or incapacity. The State shall provide for an election to fill 
the vacancy at such time and in accordance with such procedures 
as may be provided under State law, and an individual appointed 
under this section may be a candidate in such an election. This 
section shall not apply with respect to any Member of the House 
who dies or becomes incapacitated prior to the 7-day period 
which ends on the date on which the event requiring 
appointments to be made under this section occurs. These 
provisions would deny the right to government under laws 
enacted by elected representatives, override the existing 
constitutional authority of the House to determine the rules of 
its proceedings, override current constitutional quorum 
requirements, and override the existing constitutional 
discretionary authority of Congress to require expedited 
special elections in emergency circumstances.
    Sec. 3. Section 3 provides that during the period of an 
individual's appointment under Sec. 2, the individual shall be 
treated as a Member of the House of Representatives for 
purposes of all laws, rules, and regulations, but not for 
purposes of Sec. 1. If an individual appointed under Sec. 2 is 
unable to carry out the duties of a Member during such period 
because of death or incapacity, the chief executive of the 
State involved shall appoint another individual from the same 
list of nominees presented under Sec. 1 from which the 
individual was appointed under Sec. 2. Any individual so 
appointed shall be considered to have been appointed under 
Sec. 2. These provisions would deny the right to government 
under laws enacted by elected representatives.
    Sec. 4. Section 4 provides that Congress may by law 
establish the criteria for determining whether a Member of the 
House of Representatives or Senate is dead or incapacitated, 
and shall have the power to enforce this article through 
appropriate legislation. These provisions would override the 
existing constitutional authority of the House to determine the 
rules of its proceedings.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, the Committee notes H.J. Res. 83 
makes no changes to existing law.

                           Markup Transcript



                            BUSINESS MEETING

                         WEDNESDAY, MAY 5, 2004

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:09 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr., Chairman of the Committee, presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    Pursuant to notice, I now call up House Joint Resolution 
83, Proposing an Amendment to the Constitution of the United 
States Regarding the Appointment of Individuals to Fill 
Vacancies in the House of Representatives for purposes of 
markup, and move its adverse recommendation to the House.
    Without objection, the Joint Resolution will be considered 
as read and open for amendment at any point.
    [The resolution, H.J. Res. 83, follows:]
      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes to speak on the----
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York seek recognition?
    Mr. Nadler. Mr. Chairman, I seek recognition in order to 
ask unanimous consent, in view of the seriousness of this 
matter, that the author of this proposed constitutional 
amendment, Mr. Baird, be given a few minutes to address the 
Committee and explain the amendment.
    Chairman Sensenbrenner. Is there objection?
    Mr. Chabot. I object.
    Chairman Sensenbrenner. Objection is heard.
    The Chair now recognizes himself for 5 minutes to explain 
the amendment. The debate over constitutional amendments that 
allow appointed House Members in the wake of mass vacancies 
caused by a terrorist attack is a debate between those who 
would preserve a House of Representatives elected by the people 
and those who would deny the right to elected representation 
during the most crucial moments of American history and allow 
rule by an appointed aristocracy that owes its allegiance not 
to the people, but to those doing the appointing.
    Let's be clear. Any constitutional amendment denying the 
right of elected representation would accomplish what no 
terrorist could, namely, striking a fatal blow to what has 
otherwise been the people's House. The House, unlike the 
presidency and the Senate, and unique amongst all branches and 
bodies of the entire Federal Government, is the only branch 
institutionally designed to reflect the popular will through 
legislation it passes.
    When terrorists attacked on September 11th, 2001, it was an 
elected, not an appointed Congress, that acted in its wake, and 
the legislation passed by that elected Congress has a 
legitimacy that legislation passed by an appointed Congress 
would not have had. All of Congress's powers under article I of 
the Constitution are only legitimately exercised by an elected 
House of Representatives.
    H.R. 2844, the ``Continuity in Representation Act,'' which 
passed the House 2 weeks ago on an overwhelming bipartisan vote 
of 306 to 97, with more Democrats voting for it than against 
it, will ensure that the House is repopulated by a legitimate 
democratic means within a maximum of 45 days after an attack 
causes mass vacancies in the House. Within those 45 days, any 
constitutional amendment that allowed rule by appointed Members 
would pose far more risk than benefits. Legislation passed by 
an appointed House that did not comport with the people's will 
would have to be repealed by a later elected House, leading to 
further discontinuity at the very time continuity is most 
important.
    The Founders explicitly rejected the proposition that the 
appointment of Members is compatible with the American 
Republic. James Madison wrote that ``it is particularly 
essential that the House should have an immediate dependence on 
and intimate sympathy with the people,'' and that elections are 
``unquestionably the only policy by which this dependence and 
sympathy can effectively be secured.'' As Madison stated in his 
speech to the Constitutional Convention, ``a gradual 
abridgement of the right to elected representation has been the 
mode in which aristocracies have been built on the ruins of 
popular forums.''
    Contrary to the claims made by proponents of the 
constitutional amendment, the President will not be 
unconstrained in his conduct immediately following a 
catastrophic terrorist attack. Indeed, the Founders made clear 
that the President would always be subject to impeachment by 
the House of Representatives, either a House operating on 
reduced membership, or a later fully reconstituted House, if 
the President abused his executive authority at any time.
    And of course, no law could be enacted solely by a House 
operating with only a few Members alone. Further, the issue of 
incapacitated House Members can be handled by changes to House 
rules, and the House Rules Committee is already exploring those 
options.
    Demonstrating that this is not a partisan issue, but one 
concerning the legitimacy of all Members of the House and of 
the legislation it passes, the House of Representatives, 
controlled by Democrats and Republicans, has rejected all 
constitutional amendments authorizing appointed House Members 
sent to it by the Senate, even during the height of the Cold 
War.
    Today we address House Joint Resolution 83, sponsored by 
Representative Brian Baird. This proposed constitutional 
amendment contains all the flaws of amendments allowing the 
appointment of non-elected Members. It also has some unique 
additional problems. The amendment would not only override the 
bill we just passed, but it would forever strip Congress of its 
authority to expedite special elections in emergencies under 
its existing constitutional authority.
    The amendment requires House Members, prior to taking the 
oath of office, to submit a list of names to the Governor, so 
the Governor can draw from them in appointing that Member's 
replacement. This would subject candidates to endless questions 
during their campaigns regarding who they placed on the list, 
creating needless distractions. If a candidate didn't tell the 
press who was on his or her list, the voters would not have a 
say on who that candidate's potential replacement should be. 
Such a list would also invite great mischief, including the 
placing of names on the list of those owed political favors.
    Finally, the amendment also provides that Congress may by 
law establish criteria for determining whether a Member of the 
House of Representatives is dead or incapacitated. That 
provision would deny the House its existing authority, an 
authority the House Rules Committee is already exercising, to 
address incapacitation by House rules, and needlessly involving 
the Senate in how the House operates. By doing so it would 
unfortunately make addressing continuity in Government more 
difficult than it already has.
    I strongly oppose this amendment, and encourage Members of 
this Committee to join me in supporting the unbroken tradition 
of American Government of elected representation in the House.
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Thank you, Mr. Chairman. I'm happy to be here 
today, but I wanted to ask you, my colleague from New York, Mr. 
Nadler, is probably going to try to seek time, and I was 
wondering if you are inclined to allow him a few minutes for 
discussion on this matter.
    Chairman Sensenbrenner. Gentleman from Michigan yield this 
time to Mr. Nadler?
    Mr. Conyers. That's not what I said.
    Mr. Nadler. Point of information? Mr. Chairman, point of 
information?
    Chairman Sensenbrenner. The procedure that has been 
utilized in the Committee has been that the Chairman and 
Ranking Member, whether it's at the full Committee or the 
Subcommittee, would make opening statements. The Chair then 
asks unanimous consent that all Members may include opening 
statements in the record. That has always been granted. Then 
the bill is open for amendment including motions to strike the 
last word. And I would hope that that process, which has been 
successful in the past, could be repeated.
    Mr. Conyers. Thank you very much.
    Chairman Sensenbrenner. The Chair will give----
    Mr. Nadler. Point of information, Mr. Chairman?
    Chairman Sensenbrenner. State your point.
    Mr. Nadler. Under such a procedure, as Ranking Member of 
the Constitution Subcommittee, which did not have a hearing or 
markup on this amendment, although it probably should have, if 
I were to strike the last word for an opening statement, would 
that preclude me from striking the last word to offer 
amendments?
    Chairman Sensenbrenner. The gentleman can offer amendments 
which are subject to the germaneness rule.
    Mr. Nadler. After the opening statement?
    Chairman Sensenbrenner. Yes.
    Mr. Nadler. Thank you.
    Mr. Conyers. Thank you. I----
    Mr. Chabot. Would the gentleman yield?
    Chairman Sensenbrenner. Time is controlled by the gentleman 
from Michigan. The Chair will give the gentleman from Michigan, 
with unanimous consent, another 2 minutes.
    Mr. Conyers. Who is asking that I yield?
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Conyers. Oh, yes, of course.
    Mr. Chabot. By way of clarification, the Subcommittee on 
the Constitution did have a hearing on the overall issue of 
congressional continuity which included the concept of a 
constitutional amendment or statutory changes which we passed 
recently, so we did actually have a hearing on this issue.
    Mr. Nadler. Would the gentleman yield?
    Mr. Conyers. I thank the Subcommittee chair.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Michigan.
    Mr. Conyers. What I am thinking, Subcommittee Chair Chabot, 
is that there was not a hearing on H.J. Res. 83. It was a more 
generalized one.
    Now, this is a troubling proposition, and the procedure 
before us is troubling as well. I'm going to yield a couple of 
minutes of my time to my colleague, Jerry Nadler, and I ask 
unanimous consent that my statement be printed at this point in 
the record.
    Chairman Sensenbrenner. Without objection, all Members' 
opening statements may be printed in the record.
    Mr. Conyers. Thank you.
    [The prepared statement of Mr. Sensenbrenner follows:]

  Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a 
 Representative in Congress From the State of Wisconsin, and Chairman, 
                       Committee on the Judiciary

    The debate over constitutional amendments that allow appointed 
House Members in the wake of mass vacancies caused by a terrorist 
attack is a debate between those who would preserve a House of 
Representatives elected by the People, and those who would deny the 
right to elected representation during the most crucial moments of 
American history and allow rule by an appointed aristocracy that owes 
its allegiance not to the people, but to those doing the appointing.
    Let us be clear. Any constitutional amendment denying the right to 
elected representation would accomplish what no terrorist could, namely 
striking a fatal blow to what has otherwise always been ``The People's 
House.'' The House--unlike the Presidency and the Senate and unique 
among all branches and bodies of the entire federal government--is the 
only branch institutionally designed to always reflect the popular will 
through the legislation it passes.
    When terrorists attacked on September 11, 2001, it was an elected--
not an appointed--Congress that acted in its wake, and the legislation 
passed by that elected Congress has a legitimacy that legislation 
passed by an appointed Congress would not have had. All of Congress' 
powers under Article I of the Constitution are only legitimately 
exercised by an elected House of Representatives.
    H.R. 2844, the Continuity in Representation Act, which passed the 
House two weeks ago on an overwhelming bipartisan vote of 306-97 (with 
more Democrats voting for it than against it), will ensure that the 
House is repopulated by legitimate democratic means within a maximum of 
45 days after an attack causes mass vacancies in the House. Within 
those 45 days, any constitutional amendment that allowed rule by 
appointed Members would pose far more risks than benefits, and 
legislation passed by an appointed House that did not comport with the 
people's will would have to be repealed by a later elected House, 
leading to further discontinuity at the very time continuity is most 
important.
    The Founders explicitly rejected the proposition that the 
appointment of Members is compatible with the American Republic. James 
Madison wrote that ``it is particularly essential that the [House] 
should have an immediate dependence on, and an intimate sympathy with, 
the people'' and that ``elections are unquestionably the only policy by 
which this dependence and sympathy can be effectually secured.'' And as 
Madison stated in his speech to the Constitutional Convention, ``A 
gradual abridgement of'' the right to elected representation ``has been 
the mode in which Aristocracies have been built on the ruins of popular 
forms.''
    Contrary to the claim made by proponents of constitutional 
amendments, the President would not be unconstrained in his conduct 
immediately following a catastrophic terrorist attack. Indeed, the 
Founders made clear that the President would always be subject to 
impeachment by the House of Representatives--either a House operating 
on reduced membership, or a later fully reconstituted House--if the 
President abused executive authority at any time.
    And of course, no law could be enacted solely by a House operating 
with only a few Members alone. Further, the issue of incapacitated 
House Members can be handled by changes to House Rules, and the House 
Rules Committee is already exploring those options.
    Demonstrating this is not a partisan issue, but one concerning the 
legitimacy of all Members of the House and of the legislation it 
passes, the House of Representatives, controlled by both Democrats and 
Republicans, has rejected all constitutional amendments authorizing 
appointed House Members sent to it by the Senate, even during the 
height of the cold war.
    Today we address H.J. Res. 83, sponsored by Rep. Brian Baird. This 
proposed constitutional amendment contains all the flaws of amendments 
allowing the appointment of non-elected Members. It also has some 
unique additional problems.
    Rep. Baird's amendment not only would override H.R. 2844, which 
already passed the House on an overwhelming bipartisan vote, but it 
would forever strip Congress of its authority to expedite special 
elections in emergencies under its existing constitutional authority.
    The amendment requires House Members, prior to taking the oath of 
office, to submit a list of names to the Governor that the Governor can 
draw from in appointing that Member's replacement. This would subject 
candidates to endless questions during their campaigns regarding who 
they placed on the list, creating needless distractions. If a candidate 
did not tell the press who was on his or her list, the voters would not 
have any say on who the candidate's potential replacements should be. 
Such a list would also invite great mischief, including the placing of 
names on the list of those owed political favors.
    Finally, Rep. Baird's proposed amendment also provides that 
``Congress may by law establish the criteria for determining whether a 
Member of the House of Representatives or Senate is dead or 
incapacitated. . . .'' This provision would deny the House its existing 
authority--an authority the House Rules Committee is already 
exercising--to address incapacitation by House Rules, and needlessly 
involve the Senate in how the House operates. By doing so, it would 
unfortunately make addressing continuity in government more difficult 
than it already is.
    I strongly oppose this amendment, and encourage all Members of this 
Committee to join me in supporting the unbroken American tradition of 
elected representation.

    [The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress From the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    I believe that it is premature for the Committee to take up a 
constitutional amendment on the very serious issue of continuity in 
congress as a result of a terrorist attack. I cosponsored and voted for 
the Chairman's statutory response to this matter two weeks ago. While 
that response is not mutually exclusive to a constitutional amendment, 
in my judgment we need a lot more information and views on the range of 
possible constitutional amendments before we proceed.
    The Baird amendment has many salutary aspects. It provides for an 
immediate and seamless process of picking congressional successors. As 
such, it would allow this body to continue quite quickly and insure 
that the framers visions of constitutional checks and balances was 
observed. There are many, many ways to do this, and the Baird amendment 
represents merely one option--through temporary appointments based on a 
list of nominees provided by the deceased member. Other Members 
including our colleague Zoe Lofgren have also weighed in with 
constitutional amendments.
    The problem with these amendments, of course, is that they would 
protect our prerogatives at the expense of the democratic process, 
albeit temporarily. If we are going to take a dramatic step like this, 
I would like a lot more input before we vote.
    While the Committee did hold hearings last Congress on H. Res. 67, 
introduced by Rep. Baird,, we have had no hearings on his proposal this 
Congress. Moreover, Rep. Baird's proposal has changed and several other 
constitutional amendments on the issue of continuity have been 
introduced. None of these have been subject to hearings.
    Absent such a process, it will be difficult for me to support a 
constitutional amendment at this time.

    [The prepared statement of Mr. Cannon follows:]

 Prepared Statement of the Honorable Chris Cannon, a Representative in 
                    Congress From the State of Utah

    In Federalist No. 57 James Madison wrote, ``If we consider the 
situation of the men on whom the free suffrages of their fellow 
citizens may confer the representative trust, we shall find it 
involving every security which can be devised or desired for their 
fidelity to their constituents.''
    Simply stated we, as Representatives, owe our fidelity and 
allegiances to our constituents. They are the people who have the right 
to vote. They are the people who believe we should manage the laws of 
this nation. And they are the people who should possess the sole 
ability to send us to this august body.
    Any abridgement on the ability of our constituents to have a voice 
electing who shall represent them is a direct assault on what is stated 
in Article 1 Section 2 of the Constitution. This article simply states 
that the PEOPLE of the several states shall choose the Members of the 
House. It is simple and direct and should not be infringed upon.
    In front of us today are a number of Constitutional Amendments, 
even though the House has already spoken on this issue in the 
overwhelming bipartisan passage of H.R. 2844. All of these amendments 
focus on how to repopulate the House through appointments in case we 
ever have to live through a catastrophic attack. However, during a time 
of crisis, it is all the more important to have Representatives 
accountable to the people; thus, elected by the people.
    The Former Speaker of the House, Tip O'Neill will always be 
remembered for his aphorism ``All Politics Is Local.'' This phrase 
reminds us that we are the sole proprietors of the wishes of our 
constituents. By doing away with our constituencies even if it is for a 
temporary basis does this nation a grave injustice. Therefore, the 
debate on how to reconstitute the House should never turn on who has 
the appointment power. Because the appointment power rests in our 
constituency and shall remain that way as long as I have a vote.
    When Chairman David Dreier testified before the House 
Administration Committee he quoted former Senator John Stennis. Stennis 
stated,

        ``I believe it is one of the great heritages of the House of 
        Representatives that no person has ever taken a seat or cast a 
        vote in that body except by virtue of election by the people. 
        That is a great pillar of our form of government . . .''

    These are words I cherish as a Member of the House. I thank the 
Chairman and yield back the balance of my time.

    Mr. Conyers. Now, Brian Baird, I think it should be made 
clear, has been working on this question of continuity before 
9/11, and I think that this accounts for the tremendous concern 
and zeal that he brings to the subject. He's been working on it 
long before we all collectively recognize that this problem has 
to be attended to, and I want to thank him for that. And his 
amendment does have salutary aspects. But the fact that we have 
not had, to my understanding, a hearing in the Subcommittee, 
chaired by Mr. Chabot and the Ranking Member, the gentleman 
from New York, Mr. Nadler, leaves me troubled here. And so I'm 
going to find it difficult to support an amendment for which I 
am, frankly, inadequately prepared to deal with, a 
constitutional amendment. So I take this as a very serious 
matter.
    And I would now turn to my friend from New York, and he 
will have the balance of my time.
    Mr. Nadler. Thank you. I thank the gentleman for yielding.
    Mr. Chairman, I don't think this amendment is a perfect 
amendment, although I do applaud its spirit, and if I have 
time, will offer a number of amendments to it. I think it goes 
in the right direction.
    I think the remarks of the Chairman--before I get to that, 
let me just say, first of all, I think our procedure is wholly 
wrong. This is a very serious matter. The Committee in the 
last--or the Subcommittee in the last Congress had one brief 
hearing on the general topic, did not discuss in detail any 
particular proposed amendment, not to mention the several 
proposed amendments that have been offered. The House passed a 
bill on this topic without any consideration, any detailed 
consideration by the Committee or the Subcommittee.
    This is the kind of problem which frankly we ought to have 
a detailed hearing on. We ought to draft an amendment. That 
amendment ought to then be sent to the law schools, the various 
commentators, the newspapers. We ought to have several weeks, 
perhaps a month or two for comment. Then we ought to reconsider 
it. Then we ought to bring it up in Committee to consider, not 
a hasty hearing on--a hasty markup on this amendment with no 
hearing on this amendment, on this text, no opportunity in the 
Subcommittee for discussion and amendment. I think it's just 
irresponsible frankly.
    Second of all, while the sentiments voiced by the Chairman 
about election to the people's House are admirable, the fact is 
that in the event of a catastrophe, the House must function 
right away. The bill we passed says that every State shall hold 
an election within 45 days. I daresay the laws of most States 
won't permit that, and to do an election within 45 days, how do 
you do the circulation of petitions, a primary election and a 
general election including military ballots and absentee 
ballots in 45 days?
    I think the better approach would be something along the 
lines of this amendment. I would change it if we had a real 
opportunity to consider it, to say that there ought to be two 
stages, one mandate that there be an election within a 
reasonable period, say 120 days or 180 days, and say that in 
that interim period, only for 120 or 180 days, not for the 
balance of the Congress unless the balance of the Congress is 
less than 120 days, there should be an appointed Member from a 
list submitted by the Member in rank order----
    Chairman Sensenbrenner. The time of the gentleman from 
Michigan has expired. Are there amendments?
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. Gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    When one reads our Nation's founding documents, it soon 
becomes clear that the right to elected representation was the 
very core of its significance and lasting value. No 
constitutional amendment that allows appointed representatives 
would be consistent with the very essence of our Nation's 
reason for being, and for that reason I oppose such amendments 
including this one.
    James Madison wrote in Federalist No. 57, quote, ``Who are 
to be the electors of the Federal Representatives? Not the rich 
more than the poor, not the learned more than the ignorant, not 
the haughty airs of distinguished names more than the humble 
sons of obscurity and unpropitious fortune,'' unquote.
    Constitutional amendments that would allow appointed 
Members would deny that sacred heritage. At the Constitutional 
Convention, according to the notes taken by James Madison, 
Delegate George Mason argued ``strongly for an election of the 
larger branch by the people. It was to be the grand depository 
of the democratic principle of the Government. It was, so to 
speak, to be our House of Commons. It ought to know and 
sympathize with every part of the community, and ought 
therefore to be taken not only from different parts of the 
whole Republic, but also from different districts of the larger 
members of it.''
    It was arguments such as these that won the day when our 
Constitution was drafted. Constitutional amendments that would 
allow appointed Members would violate those principles the 
Founders believed were most important and on which they staked 
their lives and their fortunes. And James Wilson, at the 
Constitutional Convention, according to Madison's notes, quote, 
``contended strenuously for drawing the most numerous branch of 
the legislature immediately from the people. He was for raising 
the Federal pyramid to a considerable altitude, and for that 
reason wished to give it as broad a basis as possible,'' 
unquote.
    H.R. 2844, which I cosponsored and which passed just 
recently in the House by an overwhelmingly bipartisan basis--it 
was 306 to 97--preserves Americans' essential right to elected 
representation. This amendment would override H.R. 2844, again, 
which passed overwhelmingly by a bipartisan vote, and deny the 
core of America's founding principles. For that reason, I 
strongly oppose it.
    I yield back the balance of my time.
    Ms. Lofgren. Mr. Chairman?
    Mr. Nadler. Mr. Chairman?
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler, the Ranking Member----
    Mr. Nadler. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Nadler. Mr. Chairman, to finish my opening statement, 
no one denies the principle that the House ought to consist of 
elected people, but in the event of a catastrophe when action 
is immediately necessary perhaps, maybe there's no President, 
maybe there's no Cabinet, maybe the House has to choose 
somebody, and it won't wait 45 days or more, probably 100 days, 
for an election. We must provide for continuity in the event of 
a catastrophe.
    I would think that an appointed person, not with discretion 
by the Chief Executive. I would have each Member have a secret 
list handed to the Clerk of the House in ranked order, and have 
that appointee limited to the 45 or 50 days or 100 days till 
you can have an election. That might be a better idea, but we 
ought to consider these ideas, not summarily reject them on the 
grounds of high principle when we haven't had adequate 
hearings.
    I think Mr. Baird has done an admirable job of coming up 
with a basic idea. I think it needs modification. I would limit 
the time that this individual could serve. I would say that if 
this individual were a member of a lower legislative body, a 
State legislature, he would not have to give up his or her seat 
in that body unless elected to a longer term, and I would limit 
the whole thing to 120 days or whenever till you could hold an 
election. But you have to give a reasonable time for an 
election, especially if after a catastrophe, there are chaotic 
circumstances. It's very unlikely you're going to be able to 
hold an election in 45 days when everybody's trying to rescue 
the survivors and bury the dead.
    So I think we have to consider this much more seriously 
than we've considered it, instead of passing a hasty bill that, 
frankly, makes no sense because it's impossible to accomplish 
in the 45-day time period, and summarily rejecting everything 
on the grounds of high principle. We ought to look into this 
carefully. We ought to have a number of hearings in the 
Subcommittee and do this properly, and I would object to the--I 
would oppose the motion to report unfavorably because I think 
it's unfair to the sponsor. I think it's unfair to the subject. 
I think it's unfair to the American people who deserve careful 
consideration of what we could do to preserve continuity of 
elected representative governments in the event, God forbid, of 
a catastrophe.
    Thank you. I yield back.
    Chairman Sensenbrenner. Gentleman from Texas.
    Mr. Smith. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Smith. Mr. Chairman, article I, section 2 of our 
Constitution states, quote, ``The House of Representatives 
shall be composed of Members chosen by the people of the 
several States. When vacancies happen in a representation from 
any State, the executive authority thereof shall issue writs of 
election to fill such vacancies,'' end quote.
    The Constitution emphasizes the right of the people to 
elect their representatives. I don't think, Mr. Chairman, we 
can quote the Constitution too often, and I don't think we can 
ignore it. The right of the people to govern themselves through 
elected representatives should be continued. The House of 
Representatives has always been elected by the people. The 
constitutional amendment we are considering today, introduced 
by Congressman Baird, would create unelected representatives. 
During a national crisis the American people would be better 
served and would be reassured knowing that they are governed by 
elected representatives, not appointees.
    By allowing for the election of representatives rather than 
their appointment, Americans will know that their Government is 
legitimate.
    The House recently passed H.R. 2844, Mr. Chairman, your 
bill, which requires special elections to occur within 45 days 
of a disaster that kills more than 100 Members of Congress. 
Well, some wonder how the Government would operate while we are 
waiting for these elections. There is already a House rule that 
provides that a quorum shall consist of Members who are living. 
During a time of disaster when many Members have died, the 
Speaker can adjust the required quorum to reflect the number of 
Members still living. Furthermore, the trend of history is 
toward election of Members, not away from it.
    In 1913 the 17th Amendment to the Constitution provided 
that the people of each State shall directly elect their 
Senators. Previously, Senators were chosen by State 
legislators. However, Senate vacancies are filled by the 
Governor of the affected State. So imagine a scenario in which 
a significant number of House and Senate Members are killed 
during an attack. Senators would be appointed. If we passed a 
resolution allowing for House Members to be appointed as well, 
we could have a Congress of mostly unelected officials. At a 
minimum we must preserve the right of the American people to 
have elected representatives in the House.
    Some claim that a constitutional amendment providing for 
the immediate appointment of representatives is necessary for a 
functional Government. However, Congress has granted the 
President significant powers to act during an emergency. He 
could maintain the necessary functions of Government along with 
a Congress utilizing a reduced quorum until elections are held.
    For these reasons, Mr. Chairman, I do not support any 
constitutional amendment that would deprive the American people 
of the right to elect their representatives.
    I will yield back to balance of my time.
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from California, 
for what purpose do you seek recognition?
    Ms. Lofgren. To strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. Mr. Chairman, 2 weeks ago the House passed 
your bill, H.R. 2844 to accelerate elections in the case of the 
kind of disaster we are discussing. I voted for that bill 
because I think it is an important first step to address how 
the House would function in the event of a complete 
catastrophe. However, there's a more basic issue which is what 
would we do as a country if the Congress, if the House did not 
exist for the 45 days between the disaster and the time your 
bill would become effective?
    Without a House, there's no Congress, and what I envision 
is in that circumstance the Executive would have to assume the 
powers of a dictator in order to respond to the emergency, a 
result that none of us would wish.
    I have introduced a constitutional amendment that takes a 
different approach from Congressman Baird's. It would provide 
that in the event of a 30 percent vacancy because of a 
catastrophe, that the House could, by a two-thirds vote, 
provide by statute for a way to temporarily appoint Members 
until these special elections could kick in. Congressman John 
Larson and Congressman Dana Rohrabacher have also introduced 
amendments. Each of the amendments I think are thoughtful. 
Personally, I think almost all have merit. None of them are 
quite ready to be adopted. All of them require additional 
study. While we did have a hearing in the 107th Congress on an 
amendment by Mr. Baird, we haven't had hearings on any of the 
other amendments that have been introduced on this subject. We 
have had a distinguished commission that included former 
Speakers Foley and Speaker Gingrich, as well as Lloyd Cutler 
and former Senator Alan Simpson, and they all ended up after 
study favoring a constitutional amendment.
    I'm not suggesting that we should simply accept their 
recommendations, but it seems to me at the very least we should 
consider and evaluate their findings before we cast a vote.
    Today we're being asked to markup and amendment and we've 
not even had a hearing on the amendment. Let's look at the 
history of this Committee. For the constitutional amendment to 
protect the rights of victims, we had hearings in the 108th, 
107th, 106th, 105th and 104th Congresses. For the amendment to 
prohibit flag burning we had hearings on the 108th, 106th, 
105th and 104th. In the amendment to limit the Federal 
Government's ability to raise taxes, we had hearings in the 
105th and 104th Congress, and I would say here in the 108th we 
have had five hearings already on the proposal to amend the 
Constitution relative to same sex marriages. It seems to me 
that this Committee owes it to the country and the Congress to 
at least hold hearings on this subject. It seems to me, and I 
would propose at the appropriate time, that the Committee 
should postpone consideration of this amendment for at least 2 
weeks. The extra time would allow the Committee to schedule a 
hearing on the issue. We could hear from scholars. We could 
hear from statesmen. We could hear from the commission that 
spent so much time studying this, and we would be able to 
discharge our responsibilities relative to the constitutional 
amendments that have been proposed in a way that is more 
informed and more thoughtful.
    I would note also that we have heard quoted with great 
affection here today and also on the floor 2 weeks ago, 
Madison, talking about the need to have an elected House of 
Representatives. No one disagrees with that. I would note, 
however, that those comments made by Madison was in contrast to 
the appointed nature of the Senate at the time, and I don't 
believe that Madison would have the same attitude towards a 2-
month appointment followed by an election of permanent Members 
to avoid the dictatorship of the President. I would note also I 
was somewhat surprised, and I don't know if it's accurate, it 
was just a newspaper report--that the Majority Leader of the 
House, Mr. Delay, actually says that he thought the 17th 
Amendment was a mistake and that we ought to go back to the 
appointment of Senators. So hopefully we will not see an 
amendment to accomplish that.
    With that, I would yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble.
    Mr. Coble. Mr. Chairman, move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Coble. Mr. Chairman and colleagues, this issue, it 
seems to me, has been generously laced with bipartisanship from 
the outset. As has been pointed out by the distinguished 
gentleman from Ohio and the distinguished lady from California, 
a hearing was conducted, but in addition to the hearing, I 
think I'm correct when I say that there was a working group 
that thoroughly studied every aspect of this issue, and that 
working group, I believe, was headed by the gentleman from 
California, Mr. Cox, and the gentleman from Texas, Mr. Frost. 
So I think it has certainly been ventilated with open air 
surrounding the issue from the outset.
    Now, Ms. Lofgren, Mr. Baird, the gentleman from Washington 
and my friend, Mr. Rohrabacher, the gentleman from California, 
Mr. Larson, they all have bills that provide for appointment. 
Now, we can disagree agreeably about this, but the gentleman 
from Texas, Mr. Smith, pretty thoroughly touched on it as did 
Mr. Chabot. I think there's no substitute for elected officials 
in this body.
    Now, the Chairman pointed out in his opening statement, 
unlike the other body, no one attains membership in the United 
States House of Representatives but by election. You don't get 
appointed to the people's House.
    I recall going back home to my district sometime ago, Mr. 
Chairman, and one of the Members of the House had died. And a 
high school student said to me, I wonder if the Governor will 
appoint whom? And another high school student said, Oh, no, not 
to the House. You don't gain admission to the House through 
appointment. And I was impressed that here was a high school 
kid who knew that. Many folks don't know it. Now, Mr. Chairman, 
I may be overreaching when I make this next statement, but 
another feature that bothers me about appointments to the house 
is this fact. As we all know, there is no requirement that 
insists that a Member of the House reside in his or her 
district that he or she represents.
    I have the possible fear that appointments might abuse that 
process. Now, there may well be Members who serve today who 
don't reside in their districts that they represent, but I 
would say there are very few, because I think when a person 
declares his candidacy he is going to assume a very severe 
risk, it seems to me, if he does not reside within the 
confines----
    Mr. Weiner. Would the gentleman yield on that point?
    Mr. Coble. Not just yet. If he does not reside within the 
confines of the district that he serves. As I say, I may be 
missing the mark here and I may be overly sensitive about this, 
but I can see the possibility of an appointment resulting in 
perhaps that being abused, and perhaps certain geographic 
districts being ignored because the appointing authority may 
have a friend who lives here, there or yonder. I hope I am 
wrong about that, but I think that may be a point worthy of 
consideration.
    Mr. Weiner. Would the gentleman yield on that point?
    Mr. Coble. The gentleman from New York, I'll yield to.
    Mr. Weiner. I frankly agree with your concerns on that, 
which is exactly the argument for having a detailed hearing on 
the Baird bill, and I was wondering if you would see anything 
wrong with fleshing out that issue. It's a concern that I share 
as well and perhaps having a hearing on the bill would give us 
an opportunity to hear from experts.
    Chairman Sensenbrenner. Will the gentleman yield to me?
    Mr. Coble. I will yield to the Chairman.
    Chairman Sensenbrenner. I thank the gentleman from North 
Carolina for yielding. I am somewhat puzzled and maybe a bit 
amused at all of these calls for having a hearing. The author 
of this resolution, Mr. Baird, filed a discharge petition on 
April 20, asking that his bill be brought directly to the floor 
without any Committee consideration. When the continuity of 
Congress bill came up, I made representations several times on 
the floor of the House that the gentleman from Washington's 
constitutional amendment would be the first order of business 
at the next markup that the Judiciary Committee had. Nobody 
stood up on the floor and said that was a bad idea, that was 
rushing the matter through. And we're having this markup today 
in response to the commitment that I made to the entire House 
of Representatives that we would be having a markup on House 
Joint Resolution 83.
    Ms. Lofgren. Would the gentleman yield?
    Mr. Coble. It is my time and I think it is about to expire. 
I will yield to the lady till the red light comes on.
    Ms. Lofgren. I would just note that I have not filed a 
discharge petition for my constitutional amendment, nor have I 
signed the discharge petition, and I think we should have a 
hearing on all the amendments that have been introduced on this 
subject.
    Mr. Coble. I reclaim my time and yield----
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman. I have a lot of 
different emotions floating around and I'll try to bring them 
together if I can.
    First of all, I want to compliment the Chairman on the 
conduct of the bill, his bill that went to the floor, and the 
debate that took place. I want to especially compliment one 
phrase or sentence that he stated on the floor, so that we can 
try to get this back in some perspective.
    The Chairman went out of his way to make it clear that this 
should not be, is not a partisan issue. And I would think that 
it would not serve any of us well to try to make this debate a 
partisan debate, and I'm beginning to get the feeling, hearing 
people speak on both sides of what we are doing here, that that 
could happen easily, and I think it would be a detriment.
    I think the American people deserve to hear us consider 
issues of this magnitude, and debate them and evaluate them, 
and I think the passage of the Chairman's bill on the floor of 
the House, which I ultimately did vote for despite a number of 
reservations that I had about the content on the bill, on the 
theory that there really is no resolution to this issue that I 
am going to be completely comfortable with, but the passage of 
the Chairman's bill on the House floor actually takes some 
pressure I think off of us to rush to a judgment on what may be 
other possible solutions to this problem.
    I have been, probably more than most people on this 
Committee, very reluctant to entertain the notion of amending 
the Constitution. I think the Constitution is, to the extent 
that we can keep it sacrosanct, we should keep it sacrosanct. 
So it would be delightful to me if we could find a resolution 
to this problem short of amending our Constitution, but I don't 
think the Chairman's bill really does that, at least not for a 
45-day window after a catastrophe occurs. You've got a House of 
Representatives that could continue to be in limbo, and if you 
take seriously the motion to recommit, which was passed with 
the Chairman's consent, that 45-day period could in a number of 
cases become 90 days or much longer to comply with all of the 
other requirements that exist in the law.
    I think this is one of those situations that really cries 
out for deliberation not only about Mr. Baird's proposal but 
about the whole range of proposals that are out there, because 
I think every single one of these proposals is going to cause 
some discomfort to us, and there will be no perfect solution to 
this problem. It will be a matter of judgment, and the more we 
know about the issue, the more likely it is we are able to 
exercise that judgment in a responsible way and in a way that 
the public will perceive that we have dealt with this issue in 
a nonpartisan, thoughtful way. I think it is a mistake to 
proceed with the markup of this bill without considering all of 
the proposals that are out there and having hearings on them.
    With that, I will yield back, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from Indiana, Mr. Hostettler.
    Mr. Hostettler. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Thank you, Mr. Chairman.
    Mr. Chairman, I believe it is of the utmost importance that 
the House of Representatives remain an elected body, regardless 
of the circumstances surrounding the election of those 
representatives.
    It is indeed an unhappy task to discuss the possibly tragic 
scenarios that might result in a large section of the House 
needing to be replaced. However, it is even worse to think that 
in such a chaotic time that we would be without means by which 
to reelect this body.
    Previously, Mr. Chairman, as you said, this body 
overwhelmingly passed H.R. 2844, the ``Continuity in 
Representation Act,'' which would provide for special elections 
if vacancies in the House of Representatives exceed 100 
Members. H.R. 2844 would ensure that this body remains an 
elected body instead of merely an appointed one.
    There are some who would argue that that point is not very 
important, but consider a quote from Justice Joseph Story as he 
explained why the colonists decided that the House should be an 
elected representative body in his book entitled ``A Familiar 
Exposition of the Constitution of the United States.'' Quote: 
``Their own experience as colonists, as well as the experience 
of the parent country and the general deductions of the theory 
had settled it as a fundamental principle of free Government, 
and especially of a Republican Government, that no laws ought 
to be passed without the consent of the people through 
representatives immediately chosen by and responsible to 
them,'' end quote.
    Without a House of Representatives directly elected by the 
people in a national emergency, all three branches of 
Government would become appointed rather than elected 
officials. We must retain at least one part of the Federal 
Government that is accountable to the people. For this reason, 
I urge my colleagues to oppose H.J. Res. 83, and maintain a 
House of Representatives that will be the voice of its 
constituency.
    Yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Schiff.
    Mr. Schiff. Thank you, Mr. Chairman.
    As I've watched the debate over this proposal over the last 
couple months I've wondered how we got onto this partisan 
track, and perhaps more importantly, how do we get off of it? 
In May 2003, the Continuity of Government Commission issued a 
report with many recommendations.
    I, for one, and I think a great many Members of this 
Committee, would like to have a hearing with that commission, a 
bipartisan commission, and hear from them directly about their 
report, why they reached the conclusions they did, what options 
they laid out, whether we should consider some of the options 
they put forward. And yet, we don't seem able to do that. I'm 
perplexed by the lack of time to do that when I'm on the 
Subcommittee that had a hearing on this a couple years ago. 
We've had two hearings out of five scheduled hearings on gay 
marriage in that Subcommittee. We have time for five hearings 
in that Subcommittee on the gay marriage amendment, but we 
don't have time for one hearing on this May 2003 Continuity of 
Government Commission report.
    This is, as it's been observed by many people, the 
quintessentially nonpartisan issue. If we are obliterated, if 
the Congress is obliterated by terrorists, we are all going to 
be equally targets. The Democrats are no more targets than the 
Republicans. There is no way to discern a partisan advantage in 
this legislation. There is none.
    We all agree that the election of House Members is an 
attribute of this House that we cherish. That's not dispute, 
and those that would quote the framers of the Constitution or 
other writers on the Constitution celebrating that. We all 
agree with that.
    There is only one very narrow issue here, and that narrow 
issue is who will govern? Who will represent the country in the 
Congress until the elections? It's not a question of us doing 
away with the elections. No one is proposing that. It's just a 
question of what do we do in that narrow interval of time after 
calamity before the elections. Do we have a Congress that is 
either unable to function for 45 days or 90 days until we have 
special elections? Do we have an appointed Congress that would 
satisfy that function? Do we want to investigate appointments 
from a list, as Mr. Baird has offered in his amendment? Do we 
want to give the Governor the power to appoint? Do we want to 
impose a requirement that those that are appointed for the 
interim could not run in the election that would follow; is 
that desirable, or is that undesirable?
    These are all I think very legitimate questions many of us 
would like to pose to the commission Members that have studied 
this issue, but none of us will get the opportunity to.
    Justices in the past have made the observation that the 
Constitution is not a suicide pact. Justice Jackson wrote: 
There's a danger that if the Court does not temper its 
doctrinaire logic with a little practical wisdom, it will 
convert the constitutional Bill of Rights into a suicide pact.
    The same can be said for the Congress. If we don't temper 
some of our doctrinaire logic with a little practical wisdom, 
we can convert this constitutional provision into a suicide 
pact. There's no need for that. And there can be a very 
legitimate and bipartisan debate and difference of opinion over 
what ought to happen in those 45 or 90 days. But there's 
obviously a great deal of interest in having a further 
discussion on this issue. There's no need to rush to a 
determination of Mr. Baird's bill or the bill that we had last 
week.
    In the interest of comity between the parties on an issue 
that is quintessentially nonpartisan, I would just like to make 
one final appeal that we have an oversight hearing of this 
issue, that we bring the commission, that we have the chance to 
air our concerns and form our opinions, and that we have the 
chance to craft a further provision. It may look exactly like 
Mr. Baird's. It may look very different, but that we bring to 
this the kind of nonpartisan and even-keeled attention that the 
American people would have us bring to the problem.
    I yield back the balance of my time.
    Chairman Sensenbrenner. Gentleman from Virginia, Mr. 
Goodlatte.
    Mr. Goodlatte. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Goodlatte. I thank the Chairman.
    Mr. Chairman, I arise in opposition to this resolution, and 
do so for the reasons cited by Mr. Chabot, Mr. Smith, the 
Chairman and others. This is the people's House. The direct 
election of Members of this body by the people is a very, very 
important principle established from the founding of our 
Constitution. I recognize that there are situations in which 
this institution could be badly damaged and disrupted. I think 
the Chairman's legislation, which passed the House of 
Representatives by a very strong margin, addresses most of 
those concerns. There will be ongoing discussions about 
particular scenarios in which that might not meet all the 
needs, but I haven't seen any constitutional amendment that 
both preserves the direct election of Members of this body and 
doesn't allay my concerns about the alternatives that are put 
forward.
    I am deeply concerned about the idea that every Member of 
this House would designate two or more other people to be 
effectively shadow Members of the Congress under very dark and 
foreboding circumstances. I am deeply concerned that if one of 
them were subsequently selected to fill a position, they would 
then have a substantial leg up over anybody else that the 
people that our Constitution clearly intended to have the final 
say, the people, would be disadvantaged by that individual in a 
time of crisis, having been appointed and thereby not having 
the opportunity to be elected. And this discussion and this 
debate can and should go on.
    But I don't understand the comments of a number on the 
other side. I particularly am concerned about the comments of 
the gentleman from California, who I see is perhaps--he's over 
there I guess--the gentleman from California, Mr. Schiff, who 
just said a few minutes ago there's no need to rush to decision 
on Mr. Baird's bill, and yet he has signed a discharge petition 
which is a complete rush to decision on Mr. Baird's bill. It is 
effectively removing any opportunity for further discussion, 
further examination of what might be an opportunity to do 
something in the future.
    We're not in a position at this point in time to take 
action. I don't foresee any of the amendments having anywhere 
near the kind of consensus that's needed to get a two-thirds 
vote in the House, a two-thirds vote in the Senate and three-
quarters of the State legislatures to ratify it, and I will 
vote against this one for the particular concerns that I 
expressed.
    But I would say to those who have signed a discharge 
petition, why circumvent the process that you're now advocating 
take place? Because it certainly could not take place. We 
certainly could not go to a more deliberative approach on any 
of these amendments if indeed a discharge petition were to be 
successful and the matter were to bypass the Committee 
entirely, go straight to the floor for an up or down vote.
    So I urge my colleagues to oppose this joint resolution, 
and yield back the balance of my time.
    Chairman Sensenbrenner. Are there amendments? The gentleman 
from New York. Are there amendments?
    Mr. Nadler. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.J. Res. 83, offered by Mr. 
Nadler. On page 2, beginning on line 5: strike ``chief 
executive of the State from which the individual is elected'' 
and insert----
    Ms. Jackson Lee. Mr. Chairman, I'd like to be able to speak 
on this because I was trying to strike the last word.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. On page 2, line 6: insert ``ranked'' before 
``list.''
    On page 2, line 10: strike ``two'' and insert ``three.''
    On page 2, beginning on line 22, strike ``chief executive'' 
and all that follows through ``that time.'' And on line 24, and 
insert ``Clerk of the House.''
    On page 3, line 1, strike----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read. The gentleman from New York is recognized 
for 5 minutes.
    [The amendment follows:]

    
    
    Mr. Nadler. Thank you, Mr. Speaker--excuse me, Mr. 
Chairman.
    Mr. Chairman, as I said in my opening remarks, I think that 
we are rushing to this, and we should much more carefully 
consider this. This amendment, which really should be a series 
of amendments, essentially makes a few changes. One, it says 
that for a time period after a catastrophe where the majority 
of the Members of the House are incapacitated or no longer 
among the living, that the Clerk of the House, not the State 
Governors, would select someone from a ranked order list, that 
everyone, when elected to the House, would give in a list of at 
least three numbers--of at least three names in ranked order, 
which would say, in the event of my death or incapacitation 
appoint A. If he's not available or she, appoint B. If he or 
she is not available, appoint C. So no appointed executive is 
making a choice. Presumably that list would reflect the same 
qualities and political philosophy as the elected Member whom 
the voters elected.
    Secondly, it would say that every State must have an 
election within 120 days, which I think is more realistic than 
45 days, and these appointees can only last for that 120 days. 
So you're limiting the appointments.
    And third, it would say that any law passed by Congress 
during the period when these appointed representatives are 
serving, are no longer valid 120 days after the replacement 
elections unless the elected House has reaffirmed them. So what 
we're saying is we're going to have a little flexibility in the 
event of a catastrophe. In order to put the House together 
immediately, you have a ranked order list submitted by each 
Member to the Clerk of the House, who selects an appointee in 
ranked order. Those people can serve no more than 120 days. 
Within 120 days, or as soon as the States, according to their 
procedures, can have an election, they have an election. And 
anything the House did in that interim period can only last 
another 120 days unless reaffirmed by a totally elected House.
    So you're preserving the idea that laws are made by the 
elected House, but a House elected by the people, but you're 
giving the ability in the event of an unimaginable catastrophe 
for immediate action before the election, and you're giving the 
States 120 days rather than 45 days to hold an election, which 
enables them to hold primaries, enables people to have absentee 
and military ballots, enables there to be a real campaign. I 
mean how can you have a campaign with petitions and everything 
else in 45 days so the voters can choose anybody, especially in 
a period of chaos after an election.
    So I think that this preserves--that Mr. Baird's amendment, 
as modified by this amendment, would preserve the best 
qualities of the elected legislature, namely that within 120 
days it's completed elected again, that nothing permanent can 
be done until it is elected again, but that in the immediate 
aftermath of the catastrophe you can have appointed Members, 
but appointed by the deceased Members, someone who would 
represent the viewpoints and the philosophies of the person the 
voters elected. You're not giving a chief executive a choice of 
anybody. It's a ranked order list by the deceased House Member. 
But they can only act for 120 days.
    So I urge the adoption of this amendment to make overall 
amendment better represent both the philosophy of speed and 
emergency action that we've been talking about and of election 
that the Chairman has been talking about. And I hope really 
that this would show that there is not such a divide amongst us 
on that Committee, and that we can fashion ways--if we gave all 
of us time to consider it, we can fashion ways in which to give 
the country the flexibility to survive a catastrophe with the 
continuity of Government without sacrificing the principle of 
an elected House of Representatives.
    Ms. Lofgren. Would the gentleman yield?
    Mr. Nadler. Yes, I will.
    Ms. Lofgren. Just a brief comment. I think that this is an 
honorable effort to come up with alternatives, but I think it 
proves the point that we ought to have hearings, more than that 
we ought accept the amendment.
    Mr. Nadler. I agree.
    Ms. Lofgren. I think that to sit here and try and craft 
something as serious as this on the fly instead of hearing from 
Speaker Gingrich and Speaker Foley, instead of having the 
scholars come in. I think it's just an exercise in futility, 
and perhaps the gentleman should introduce his amendment as a 
constitutional amendment, and we can add to the number of 
proposals that will be reviewed if we----
    Mr. Nadler. Reclaiming my time, I completely agree with the 
gentlelady from California. I will consider doing that, but I 
offer this now, knowing that this Committee is being 
railroaded, to show the kinds of things that we ought to be 
considering, the kinds of things we ought to have hearings 
about, and the fact that we're not really that divided amongst 
us. We all agree on an elected House of Representatives. I 
think we all agree that we ought to be able to function in the 
aftermath of a catastrophe and----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Nadler.--why this is a partisan issue is beyond me. 
Thank you.
    Ms. Jackson Lee. I'd like to strike the last word.
    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes in opposition to the amendment.
    This amendment, while it might appear to be cosmetic, still 
keeps many of the bad features of the original amendment that 
has been introduced by Mr. Baird, and in some cases makes it 
worse.
    First of all, it still preserves the feature that Members 
may designate their own successors. I think that that brings 
this into an issue in the campaign. If a list is filed 
immediately before the swearing in of a Member-elect, that 
Member-elect, instead of having the first story in his service 
in Congress be a celebration of him being elected, the press 
will be all over him on who he has designated as a temporary 
successor. I don't think that is in the keeping of why people 
get elected to the House of Representatives to begin with.
    Secondly, the amendment removes from the Governor of the 
State, who after all is an elected official, the appointment 
authority invested in the Clerk of the House, who is an 
official that is designated by the majority party in the House 
of Representatives to act as the administrative and clerk of 
the records of the House of Representatives. So instead of 
having a governor making the selection, we end up having the 
Clerk of the House doing that.
    I think the biggest flaw of the amendment offered by the 
gentleman from New York is that it extends by 75 days the 
amount of time where an appointed House can sit beyond that 
which is in H.R. 2844. The underlying text of the amendment 
takes away the powers in article I, section 4 of the 
Constitution of Congress in emergency situations to set 
election time and sets the arbitrary time of 120 days. There 
are many States that are able to fill vacancies by special 
election much quicker than that. If we have an arbitrary time 
of 120 days, the States that act more quickly will end up 
having elected representatives come to Washington. The States 
that act more slowly will continue to have appointees sitting 
in the House of Representatives. That opens up another 
Pandora's box that I think is best shut by voting down this 
amendment.
    Ms. Jackson Lee. I would like to speak to the amendment.
    Chairman Sensenbrenner. The gentlewoman from Texas.
    Ms. Jackson Lee. Strike the last word.
    Chairman Sensenbrenner. The gentlewoman's recognized for 5 
minutes.
    Ms. Jackson Lee. Let me first of all acknowledge the 
credible attempt to give Mr. Baird a full hearing by way of 
this markup, and the amendment that is before us. Certainly the 
effort is to ensure that we recognize the potential catastrophe 
which we face.
    But just as in the 1980's when 265 plus sleeping military 
personnel lost their lives in Lebanon by a single act of 
terrorism, I think we have to realize that as we engage in our 
business here in the United States Congress, that single act of 
terrorism can occur. And for some reason it appears that the 
very Committee of which is supposed to be a guiding force 
behind constitutional protections, is not focused in sincerity 
or seriously about the need to conduct hearings to determine 
the best approach.
    The reason Mr. Baird is forced into a discharge petition is 
because he simply wants a full and open hearing to design a 
right road map, which in the instance of his recommendation is 
a constitutional amendment, for how we deal with the Lebanon 
tragedy or the Lebanon terrorist act, when 265 died in their 
sleep, as 435 or 535 might die as they are convened on the 
floor of the Senate or the House.
    So it seems to me that we are taking this question without 
seriousness. Why would we deny something as important and 
crucial to the lifeline of America, a simple hearing, a 
constitutional hearing before the Constitutional Subcommittee 
on the question of Mr. Baird's constitutional amendment?
    I may agree or disagree as to whether or not we amend the 
Constitution. I certainly agree with Mr. Baird that we should 
have the ability to restore the Congress within days of a 
catastrophe, as opposed to 45 to 75 days, the most powerful 
law-making body in this world.
    Additionally I would argue that to place this only in 
political parties and not have the States have the ability to 
act quickly is also a catastrophe.
    So I think the fact that we have had a statutory response 
to this--and I am not sure of the legs of that legislation in 
the Senate--that we really have not done our job by not having 
the full hearing, a constitutional hearing on the 
constitutional amendment.
    Mr. Baird has made a very good case. I was part of the 
House's Continuity Committee, appointed by the Speaker and the 
Leader. We met for at least a year. Our reports were authored, 
legislation generated. But yet the solution is still not here.
    We may take light of this by having this kind of markup 
where amendments are thrown out piecemeal trying to fix 
something that maybe cannot be fixed without the direct kind of 
road map.
    So I would just argue to my colleagues that it is shameful 
that we have forced a legislator, who has worked on this for a 
number of years, into the predicament of a discharge petition. 
We know it best, that that will linger and languish where it is 
even with the signatures of many of us, particularly if it does 
not secure bipartisan signatures. But he has been forced into 
this odd and unfortunate legislative procedure because he is 
struggling for air, drowning in a ocean of confusion and 
partisanship, because it doesn't make sense that we're not 
having a hearing before this Committee.
    So I would ask my colleagues, in the consideration of this 
amendment that certainly adds to the enhancement of where we 
are, it is not the answer to where we need to go. It's shameful 
that we're not having hearings, and I would ask the Chairman of 
this Committee and of course I would ask the Speaker to see 
that this is crucial enough that we have hearings and that we 
deliberate for a period of time in the backdrop of a statutory 
position that has passed out of the House.
    I just note that we are in crisis, and I guess I'm 
contradictory by saying let us have hearings and deliberate. 
What I'd like to do is to have hearings as quickly as possible 
and to move forward on the best way to address the question of 
continuing the United States Congress in light of the potential 
terrorist act or in light of an actual terrorist attack against 
this sitting body.
    I yield back.
    Chairman Sensenbrenner. The question is offered by the 
gentleman--for what purpose does the gentleman from California 
seek recognition?
    Mr. Berman. Strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Berman. Mr. Chairman, I yield to the gentleman from New 
York, Mr. Nadler.
    Mr. Nadler. Thank you, and I appreciate the gentleman 
yielding.
    Mr. Chairman, I offered this amendment after some thought 
about the constitutional amendment offered by the gentleman 
from--by Mr. Baird, which I think has considerable merit, to 
show some of the serious questions involved in this. My 
amendment was very hastily drafted. I do not claim it makes a 
perfect constitutional amendment. Obviously it needs further 
work.
    I offered it to show that there are serious issues 
involved, that we have not properly considered them. I think 
that some of the questions or some of the answers here are 
valid. But I'm going to withdraw the amendment having--at this 
time because I don't think we're ready for a vote on it, 
frankly. I don't think we're ready for a vote on any of this at 
this point.
    Chairman Sensenbrenner. The amendment----
    Mr. Nadler. I think that--I think that we ought to hold 
hearings, as Ms. Lofgren is going to suggest, but at this time 
I withdraw the amendment.
    Chairman Sensenbrenner. The amendment is withdrawn.
    Are there further amendments?
    Mr. Nadler. And I yield back.
    Chairman Sensenbrenner. Are there further amendments?
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California seek recognition?
    Ms. Lofgren. Mr. Chairman, I move that we postpone 
consideration of this proposal, H.J. Res. 83, until Thursday, 
May 20, 2004. The reason why I would----
    Chairman Sensenbrenner. The question is on the motion. The 
gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. Mr. Chairman, I move to table the motion.
    Chairman Sensenbrenner. The question is on the motion to 
table the motion to postpone.
    Ms. Lofgren. Mr. Chairman?
    Mr. Nadler. Mr. Chairman? Point of order, Mr. Chairman?
    Ms. Lofgren. May I speak in favor of my motion?
    Chairman Sensenbrenner. The question is on the motion to 
table----
    Mr. Nadler. Mr. Chairman?
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. The motion to table is non-
debatable.
    Ms. Lofgren. Mr. Chairman, I was making a motion. I was cut 
off before I could argue----
    Chairman Sensenbrenner. The rules of the House which apply 
to the Committee state that when a Member makes a motion, a 
Member is not recognized to debate on that----
    Ms. Lofgren. I would ask unanimous consent that I--that my 
motion be withdrawn.
    Chairman Sensenbrenner. Without objection, the motion--
well, the pending motion is the motion to table the motion to 
postpone. Does the gentleman from Ohio make the motion--or ask 
unanimous consent to withdraw his motion to table first?
    Mr. Chabot. I do.
    Chairman Sensenbrenner. Without objection, the motion to 
table is withdrawn.
    The gentlewoman from California.
    Ms. Lofgren. Mr. Chairman, I believe--I move to strike the 
last word.
    Chairman Sensenbrenner. The gentlewoman from California did 
say that she was--for what purpose does the gentlewoman from 
California seek recognition?
    Ms. Lofgren. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman has already been 
recognized once on--when she made her motion to postpone to a 
date----
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. Does the gentleman from Ohio wish 
to renew his motion? Because apparently both motions were 
supposed to be withdrawn at the same time.
    Mr. Chabot. I'll renew it.
    Chairman Sensenbrenner. The question is now on the motion 
to table the motion to postpone.
    Those in favor will say aye?
    Opposed, no?
    The ayes appear to have it----
    Ms. Lofgren. Mr. Chairman, I request a rollcall vote.
    Chairman Sensenbrenner. The rollcall is requested. Those in 
favor of tabling the motion to postpone until May 20 will, as 
your names are called, answer aye, those opposed, answer no, 
and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler----
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Carter?
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt, no. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin, no. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change their votes? If--the gentleman from 
Massachusetts, Mr. Meehan?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman, no.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Chairman Sensenbrenner. The clerk will report.
    The Clerk. Mr. Chairman, there are 19 ayes and 12 noes.
    Chairman Sensenbrenner. And the motion to table is agreed 
to.
    Are there further amendments? If there are no further 
amendments, the question----
    Ms. Lofgren. Mr. Chairman? Mr. Chairman?
    Chairman Sensenbrenner. Does the gentlewoman have an 
amendment?
    Ms. Lofgren. Oh, I seek time. Actually, I think----
    Chairman Sensenbrenner. Well, we have a vote on. The 
Committee is recessed. Members are encouraged to come back 
promptly after the two votes on the floor because we still have 
a number of other measures to dispose of, including this one.
    The Committee stands recessed.
    [Recess.]
    Chairman Sensenbrenner. The Committee will be in order.
    When the Committee recessed for the votes, the bill House 
Joint Resolution 83 was before the Committee with a motion to 
report the bill adversely. Are there further amendments?
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, I want to add my voice to those 
that have criticized this procedure. We haven't had a hearing 
on this very complicated issue. I would hope that--it puts us 
in an impossible situation, and I would hope that we would 
delay so that we would have some time to actually fully 
consider this legislation within a hearing. And I yield the 
balance of my time to the gentlelady from California.
    Ms. Lofgren. I thank the gentleman for yielding.
    What should happen is that the Committee should postpone 
deliberation on this measure so that hearings can be held in 
the Subcommittee on the Constitution. And the Subcommittee on 
the Constitution ought to invite Members of the full Committee 
who are interested in this issue to come and participate with 
the Subcommittee in the hearings so that we can all be as 
informed as possible on the overall issue.
    The hearing should be not only on Mr. Baird's proposed 
constitutional amendment but on the proposed constitutional 
amendment of Mr. Larson, Mr. Rohrabacher, my constitutional 
amendment, Mr. Nadler's proposed constitutional amendment, and 
any other amendments that may be introduced on this subject.
    I think the first witness ought to be Speaker Newt 
Gingrich, who spent a lot of time on the commission working to 
come to a conclusion to give us some advice. And the second 
witness ought to be former Speaker Tom Foley.
    I think it's regrettable that this Committee is obviously 
proceeding on a party-line basis in discussing this 
institutional issue, and I think it's unnecessary when Newt 
Gingrich and Tom Foley actually worked together and reached the 
same conclusion, which is that we need to have a constitutional 
amendment.
    Now, whether or not we reach that same conclusion as Mr. 
Gingrich and Mr. Foley, we ought to be working through these 
issues together as a team because this is about the 
institution, it is not about partisanship or our parties.
    I am mindful that we have a lot of time here in the House 
of Representatives that we could spend on this. Last year, we--
last week, we came in, we voted to rename some post offices, 
and we voted to rename some courthouses. Then Wednesday, we 
adjourned and we all flew home.
    Today--yesterday, we came in and we congratulated some 
sports teams, and today we are doing some--I believe it's more 
post offices. We're going to run out of post offices and 
courthouses. And we have time to listen to the scholars, to 
listen to the distinguished former Members of this House and 
the leadership, to Senator Alan Simpson, to Mr. Lloyd Cutler, 
to people who really can inform us on the overall issue.
    And so I would hope that my motion to instruct the 
Subcommittee on the Constitution to hold hearings asking, 
first, Mr. Gingrich and, second, Mr. Foley to appear, inviting 
the Members of the full Committee to participate with the 
Subcommittee and that further consideration on this resolution 
be postponed until a time after May 20, 2004, be approved on a 
bipartisan basis by the full Committee.
    And I yield back to the gentleman and thank him for the 
time.
    Chairman Sensenbrenner. Are further amendments? If there 
are----
    Ms. Lofgren. Mr. Chairman, I made a motion.
    Chairman Sensenbrenner. The gentlewoman was recognized for 
5--or not--the time belonged to the gentleman from Virginia, 
who yielded debate time to the gentlewoman from California. The 
gentlewoman--neither the gentlewoman from California nor the 
gentleman from Virginia were recognized for purposes of a 
motion.
    Are there further amendments?
    Ms. Lofgren. Mr. Chairman, I have a motion.
    Chairman Sensenbrenner. The clerk will report the motion.
    Ms. Lofgren. Mr. Chairman, I move that further 
consideration in this proposal be deferred, that the 
Subcommittee on the Constitution be instructed to hold 
hearings, that the first witness should be Speaker Newt 
Gingrich, the second witness should be Speaker Tom Foley, and 
that further scholars should inform the full Committee, and 
that the full Committee ought to be invited by the Subcommittee 
to participate, and that further proceedings on H.J. Res. 83 be 
postponed to a time subsequent to May 20, 2004.
    Mr. Chabot. Mr. Chairman, I move that the motion is not in 
proper order.
    Chairman Sensenbrenner. Does the gentleman make a point of 
order?
    Mr. Chabot. I make a point of order to that effect.
    Chairman Sensenbrenner. Does anybody wish to be heard on 
the point of order?
    Under the rules of the House, a motion to postpone cannot 
have conditions attached thereto. Consequently, the point of 
order that is raised by the gentleman from Ohio is well taken.
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. Are there further amendments?
    Ms. Lofgren. Mr. Chairman, I have a motion.
    Chairman Sensenbrenner. The clerk will report the motion.
    Ms. Lofgren. Mr. Chairman, my motion is to postpone further 
consideration on H.J. Res. 83 until a time subsequent to 
Thursday, May 20, 2004.
    Mr. Chabot. Mr. Chairman, move to table the motion.
    Chairman Sensenbrenner. The question is on tabling the 
motion. Those in favor will say aye? Opposed, no?
    The ayes appear to have it. The ayes have it, and the 
motion to table the motion to postpone----
    Ms. Lofgren. I request a recorded vote.
    Chairman Sensenbrenner. A recorded vote is requested. Those 
in favor of tabling the motion to postpone will, as your names 
are called, answer aye, those opposed, no, and the clerk will 
call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    [No response.]
    The Clerk. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Ms. Hart?
    [No response.]
    The Clerk. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Carter?
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Berman?
    Mr. Berman. No.
    The Clerk. Mr. Berman, no. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no. Ms. Sanchez?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there Members in the chamber 
who wish to cast or change their votes? If not, the clerk will 
report.
    The Clerk. Mr. Chairman, there are 12 ayes and 6 noes.
    Chairman Sensenbrenner. And the motion to table the motion 
to postpone is agreed to.
    Are there further amendments? If there are no further 
amendments, the Chair notes the absence of a reporting quorum, 
and without objection, the previous question is ordered on the 
motion to report House Joint Resolution 83 adversely. And the 
Chair would request the staffs on both sides to get their 
Members present because there are two more bills that we need 
to get a reporting quorum on to report out before we break.
    [Intervening business.]
    A reporting quorum is now present. The question occurs on 
the motion to report House Joint Resolution 83 adversely. Those 
in favor will say aye. Opposed, no.
    The ayes appear to have it.
    Mr. Coble. Rollcall.
    Chairman Sensenbrenner. A rollcall is ordered. Those in 
favor of reporting House Joint Resolution 83 adversely will, as 
your names are called, answer aye, those opposed, no, and the 
clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Hostettler?
    [No response.]
    The Clerk. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Carter?
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt, no. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin, no. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    Mr. Schiff. Pass.
    The Clerk. Mr. Schiff, pass. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes? The gentleman from Tennessee, Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Schiff.
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. Mr. Chairman, how I am recorded?
    The Clerk. Mr. Chairman, Ms. Jackson Lee is recorded as a 
no.
    Ms. Jackson Lee. Thank you.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report. The gentleman 
from Massachusetts, Mr. Meehan.
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no.
    Chairman Sensenbrenner. Anybody else? The clerk will try 
again.
    The Clerk. Mr. Chairman, there are 17 ayes and 12 noes.
    Chairman Sensenbrenner. And the motion to report adversely 
is agreed to. Without objection, the Chairman is authorized to 
move to go to conference pursuant to House rules. Without 
objection, the staff is directed to make any technical and 
conforming changes, and all Members will be given 2 days, 
pursuant to the House rules, in which to submit additional, 
dissenting, supplemental, or minority views.

                            Dissenting Views

  H.J. Res. 83, an amendment to the Constitution of the United States 
regarding the appointment of individuals to fill vacancies in the House 
                         of Representatives\1\
---------------------------------------------------------------------------

    \1\ H.R.J. Res. 83, 108th Cong. (2003).
---------------------------------------------------------------------------
    We strongly support efforts to ensure the continuity of 
Government in the event of another terrorist attack or other 
catastrophic incident. However, we dissent from the Majority's 
determination to adversely report a constitutional amendment to 
the floor in an effort to discredit the amendment and deny full 
and fair hearings on the issue.
    If ever there was an issue the parties could come together 
on in a bipartisan way, it would seem to be the issue of 
continuity. The terrible and fateful attacks of September 11, 
2001, have made the American people painfully aware of the 
destructive intent of our country's terrorist enemies, as well 
as the increasingly sophisticated and devastating methods by 
which they carry out their deadly work. The possibility that 
one day terrorists could detonate a nuclear, chemical, or 
biological weapon of mass destruction in our Nation's capitol, 
annihilating major portions of our Federal Government and 
potentially killing dozens or hundreds of Members of Congress 
should serve as a source of inspiration to secure our greatest 
symbol of freedom, our democracy. Unfortunately, the Majority's 
decision to schedule a markup of H.J. Res. 83 (the ``Baird 
amendment''), without the benefit of first having a hearing, 
undermines this very notion.
    A careful review of the Committee's history with respect to 
its past treatment of constitutional amendments evidences a 
strong practice of holding hearings prior to any scheduled full 
Committee markup of that specific amendment. Consider, for 
example, the constitutional amendment to protect the rights of 
crime victims. That amendment was introduced in each 
consecutive Congress since 1994 \2\ (the year the current 
Majority took control of the House), and on each occasion, it 
has been the wisdom of this Committee to schedule a hearing. In 
this case, we were given hearings and the constitutional 
amendment was never scheduled for markup. H.J. Res. 83, by 
contrast, was scheduled for markup in the complete absence of 
hearings.
---------------------------------------------------------------------------
    \2\ H.R.J. Res. 48, 108th Cong. (2003); H.R.J. Res. 91, 107th Cong. 
(2002); H.R.J. Res. 64, 106th Cong. (1999); H.R.J. Res. 71, 105th Cong. 
(1997); H.R.J. Res. 173, 104th Cong. (1996).
---------------------------------------------------------------------------
    Also, consider the Committee's treatment of the 
constitutional amendment to prohibit flag burning. A proposal 
on this issue was introduced in the 108th, 106th, 105th and 
104th Congress and each time the Committee undertook hearings 
prior to scheduling a markup.\3\
---------------------------------------------------------------------------
    \3\ H.R.J. Res. 4, 108th Cong. (2003); H.R.J. Res. 33, 106th Cong. 
(1999); H.R.J. Res. 54, 105th Cong. (1997); H.R.J. Res. 79, 104th Cong. 
(1995).
---------------------------------------------------------------------------
    Moreover, consider the Committee's treatment of the 
constitutional amendment to limit the Federal Government's 
ability to raise taxes. A proposal on this topic was introduced 
in the 105th and 104th Congress, and hearings were held on both 
occasions.\4\
---------------------------------------------------------------------------
    \4\ H.R.J. Res. 62, 105th Cong. (1997); H.R.J. Res. 159, 104th 
Cong. (1996).
---------------------------------------------------------------------------
    With this apparent and undeniably longstanding tradition, 
the Majority now, however, conveniently asserts that a hearing 
is unwarranted. Namely, because a hearing was already held on 
the previous Baird amendment introduced in the 107th 
Congress.\5\ This line of reasoning lacks merit for several 
important reasons.
---------------------------------------------------------------------------
    \5\ See, Hearing on H.R.J. Res. 67 Before the House Subcomm. on the 
Constitution, 108th Cong. (Feb. 28, 2002).
---------------------------------------------------------------------------
    First, as previously mentioned, it has been the well-
established practice of this Committee to schedule a hearing on 
such proposals prior to proceeding to a markup. This hard and 
steadfast rule has prevailed, even under circumstances where 
the proposed amendments were virtually identical in nature.
    Second, even assuming the general rule was subject to 
change, the two versions of the Baird amendment, H.J. Res. 67 
(introduced in the 107th Congress) and H.J. Res. 83 (introduced 
in the current Congress), are distinct enough to warrant two 
separate hearings on their own merits. H.J. Res. 83, for 
example, uses a distinct threshold for making temporary 
appointments; \6\ places considerable limits on the discretion 
of the chief executive when he or she is authorized to make 
such appointments; \7\ and provides a mechanism for an 
incapacitated Member to regain his or her seat after recovery 
from incapacity.\8\
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    \6\ H.R.J. Res. 83, Sec. 2, 108th Cong. (2003) (permitting 
temporary appoints only when a majority of Members are unable to carry 
out their duties due to death or incapacity. ); H.R.J. Res. 67, Sec. 1, 
107th Cong. (2001) (allowing for such appointments whenever twenty-five 
percent (25%) are unable to carry out their duties.)
    \7\ H.R.J. Res. 83, Sec. 1, 108th Cong. (2003) (Requiring the chief 
executive of the State to make his appointment from the list of 
nominees previously supplied by the dead or incapacitated Member.); 
H.R.J. Res. 67, 107th Cong. (2001)(omitting any similar restriction).
    \8\ H.R.J. Res. 83, Sec. 2, 108th Cong. (2003) (``An individual 
appointed to take the place of a Member of the House of Representatives 
. . . shall serve until the Member regains capacity . . .''); H.R.J. 
Res. 67, 107th Cong. (2001)(omitting any similar provision).
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    Finally, as the Majority is well aware, the purpose for 
requesting a hearing on this issue was not so that the 
Committee could solely debate and consider the virtues of H.J. 
Res. 83. As Rep. Lofgren explained when offering her motion to 
postpone consideration of H.J. Res. 83 for two weeks, the 
underlying objective was to schedule a hearing on all of the 
various proposals that have been introduced to date on this 
topic; including her amendment, the Larson amendment, the 
Rohrabacher amendment and the findings of the bipartisan 
Continuity of Government Commission. Potentially a two week 
postponement would allow for careful evaluation of all of the 
various competing ideas and concepts.
    A brief postponement would have also provided the Committee 
with an opportunity to consider the lingering issues that still 
need addressing, even with the recent passage of H.R. 2844, the 
Continuity in Representation Act. Specifically, how the House 
will function in the 45-day interim period until expedited 
elections are completed \9\, and what to do in the event of 
Member incapacity. These are important issues that should not 
be shortchanged simply to advance a political agenda.
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    \9\ See, Letter from U.S. Rep. Brian Baird to Chairman F. James 
Sensenbrenner, Jr., and Ranking Member John Conyers, Jr., of the House 
Judiciary Committee (May 13, 2004).
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    The Majority has already seen fit to schedule a series of 
five hearings, over the course of the next several months, to 
discuss the issue of same-sex marriage. With this in mind, a 
two week postponement to discuss and consider ideas on how best 
to ensure the continuity of our Government in the event of 
another terrorist attack or other catastrophic incident should 
not be considered unreasonable.
    For these reasons, we respectfully dissent.

 LETTER FROM U.S. REP. BRIAN BAIRD TO CHAIRMAN F. JAMES SENSENBRENNER, 
   JR., AND RANKING MEMBER JOHN CONYERS, JR., OF THE HOUSE JUDICIARY 
                        COMMITTEE (MAY 13, 2004)



                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   William D. Delahunt.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.
                                   Adam B. Schiff.
                                   Linda T. Sanchez.

                                 
