WASHINGTON – Try as they might,witnesses before a House Judiciary subcommittee Thursday simply could not get members excited about the specter of their own violent deaths.
The Subcommittee on the Constitution,Civil Rights,and Civil Liberties held a hearing on congressional continuity,how the House of Representatives and the Senate would operate in the aftermath of a catastrophic attack. While the executive branch has a distinct procedure and a line of succession for dealing with presidential death or incapacitation,and the Senate has the moderately quick method of gubernatorial appointment to fill empty seats,the House has no provision other than special elections to fill vacancies.
Critics say the lack of a quicker process to reconstitute the House would undermine American government in the event of a massive attack on Congress. They fear that checks and balances would give way to unfettered executive power if the legislature were left with fewer members than the constitutional minimum for a quorum,a majority of members.
The lack of a quorum would prevent the House from conducting any business,including declaring war or appropriating funds.
“If an attack or natural disaster does occur,the lack of a valid solution will create confusion and constitutional crisis at precisely the worst time,” said Rep. Brian Baird,D-Wash.
Baird testified before the committee alongside Rep. Dana Rohrabacher,R-Calif. Both congressmen introduced constitutional amendments that would quicken the repopulation of the Congress in the event of a catastrophe.
Baird's proposed amendment would require each House and Senate member to designate someone who would take his or her place between the member's death and a special election for the seat. Rohrabacher's amendment would require each candidate to run on a ticket with an alternate who would take over in the event of death or incapacitation.
Current House rules address the problem by mandating special elections within seven weeks if the speaker of the House declares more than 100 seats vacant. They also allow the speaker to reduce the minimum number for a quorum.
Baird called the first rule inadequate and the second probably unconstitutional.
“Since the law was passed,there have been 21 elections for vacant House seats,” Baird said. “In that period,only one election has in fact been held within 49 days.
“Those House rules would violate the constitutional requirement of a majority quorum,” he said.
John Fortier of the American Enterprise Institute outlined other reasons that appointments,a quicker method,might be necessary.
“A president acting with the backing of Congress will be on stronger ground,” Fortier said,noting that critical actions like authorizing force would be necessary immediately after an attack. “The presence of Congress [would] reassure the American people that our constitutional system is functioning,”
The question of continuity of the House was explored numerous times during the Cold War but never solved. The issue emerged again after the terrorist attacks of Sept. 11,2001,especially after the 9/11 Commission determined that the plane that crashed in Pennsylvania was in fact aiming for the Capitol.
The independent Continuity of Government Commission,a joint venture between the American Enterprise Institute and the Brookings Institution,has investigated the issue since 2002 and concluded that a constitutional amendment allowing emergency appointments to House seats is necessary.
The measures Baird and Rohrabacher propose have little support,however. The congressmen introduced the same amendments in 2007,and both died in the Constitution subcommittee. Only four members attended the full hearing Thursday,and only Rep. Brad Sherman,D-Calif.,got particularly excited about the subject.
Subcommittee Ranking Member James Sensenbrenner,R-Wis.,said the 49-day requirement for emergency elections was adequate and worried about the prospect of appointing members to “the people's house.”
“The House is rooted in the principle of direct elections,and that principle must be preserved,” Sensenbrenner said. “I have no doubt that the boundless spirit of the American people will ensure that democracy prevails in even the most pressing conditions.”
Baird admitted after the hearing that his proposal was unlikely to get anywhere this year,either.
“I am not optimistic at all,” Baird said. “It would take willingness of members of Congress to acknowledge their own mortality.”
Baird said that the failure of Congress to address the problem amounts to an abandonment of members' oaths to the Constitution.
“You have colleagues who spend five minutes or five seconds on this and then say,‘Nah,'” he said. “My wife and I have deliberated a whole lot more than five seconds or five minutes on who would be in charge of our children if we died. Every responsible parent has a legal guardian in place or they're not doing their job. We don't have that.”