WASHINGTON – In the event of a catastrophic terrorist attack,each house of Congress concedes that the United States lacks the tools to ensure the continuity of Congressional operations. But they don't agree on how to prepare for such chaos.
Sen. John Cornyn,R-Texas,led a hearing Tuesday at which a panel of three experts expressed the need to ratify a constitutional amendment to ensure government could operate.
“Our Constitution does not prepare us for such dire circumstances,because our founders could not have contemplated the horrors of 9/11,” said Cornyn at the Senate Judiciary Committee hearing.
Cornyn,chairman of the Subcommittee on the Constitution,Civil Rights and Property Rights,said the founders built in a procedure for amendment because they understood they couldn't predict everything this nation might someday need.
“They lived in a world free of weapons of mass destruction,” Cornyn said.
Cornyn introduced the Continuity of the Senate Act of 2004,a constitutional amendment that would affect the Senate and leave the House to craft its own solution.
If a majority of senators were incapacitated,the Senate would lack a quorum and could not conduct business. This amendment would allow the temporary replacement of senators and would give incapacitated members the right to reclaim their office at any time.
Under the amendment,if at least one-fourth of the members of either the House or Senate were killed or incapacitated,states could choose from three options:
* let the governor or legislature appoint an interim representative for up to 120 days until a special election could be held,
* choose from a list of replacements drawn up by each incumbent,or
* schedule an expedited special election.
The House Judiciary Committee on Wednesday passed legislation recommending states hold special elections to fill vacancies under “extraordinary circumstances,” rather than amending the Constitution. The “Continuity of Representation Act” was introduced by Chairman F. James Sensenbrenner,R-Wis.
The measure stipulates that parties choose candidates within 10 days of an announcement of extraordinary circumstances. State elections would be held within 45 days of 100 or more vacancies occurring in the 435-member House.
Cornyn said that's an unacceptably long wait in a crisis,and the witnesses at Tuesday's hearing agreed. The committee heard from former senator Alan Simpson,R-Wyo.; Professor Sanford V. Levinson of the University of Texas Law School; and Professor Howard Wasserman of Florida International University College of Law.
Three days after Sept. 11,2001,Congress appropriated $40 billion in emergency funds and approved legislation supporting the use of military force. In subsequent weeks Congress enacted legislation to stabilize and secure the economy and airports,compensate victims and bolster national security.
“Imagine if those legislative acts had to wait 45 days for any of them to pass,” said Simpson,co-chair of the Continuity of Government Commission,a private effort of the conservative-leaning American Enterprise Institute and the liberal-leaning Brookings Institution. “I think the American people would be offended.”
The commission's first report,issued last spring,focused on reconstituting a decimated Congress. Cornyn embraced the report and introduced his constitutional amendment. But influential members of the House objected to appointing representatives before special elections could be held.
“The real key here is temporary,” Simpson added. “The House doesn't seem to understand this.”
Simpson expressed his frustration at the House's lack of receptiveness to the proposed amendment. He said he was “astounded by the reaction of the House,” and he called on Sensenbrenner to open the lines of communication.
Levinson said that Congress should choose a method for replacing legislators rather than leaving it to the states. He stressed the importance of states following uniform measures.
“If the Constitution is ever worth amending,this is one of those situations,” Levinson said.
Wasserman said he supported Cornyn's proposal,but with one omission. He said that incumbents making a list of replacements is unconstitutional.