The top headline in the Feb. 12 Roll Call was “Congress Plans for the Worst.” When I saw that big headline, I was elated and gratified. At last, the Speaker and other Congressional leaders had seen how vulnerable their institutions are to terrorist attacks and had set in motion a plan to make sure we could quickly replenish the membership of the House if large numbers of Members were killed and replenish both House and Senate if large numbers of Members were incapacitated for any length of time. [IMGCAP(1)]
Wrong. The article was about whether to inoculate Members of Congress against some of the worst dangers of biological or chemical attack — not about serious plans for “the worst.” One Member of the House said to me, “Our idea of planning for the worst is figuring out how to get out of here — not what to do if we can’t get out of here!”
How many plane crashes in Pennsylvania do we need to get it into the heads of leaders that al Qaeda has targeted the U.S. Capitol? How many interviews with al Qaeda planners on al Jazeera television? How many code orange alerts or briefings from homeland security officials about threats to assassinate individual lawmakers?
To any rational person, apparently excluding many Members of Congress, there is a clear and present danger to Congress itself. Whether it is a plane crash into the Dome, an anthrax attack into the ventilation system, a ricin attack in the Rotunda, a suitcase nuclear bomb left nearby at the time of a State of the Union message or an inaugural, or a chemical attack on the Capitol grounds, the strong possibility exists that some kind of terrorist assault could leave the House or Senate without a quorum for lengthy periods of time. In the House, a substantial number of deaths could mean no House for four months or more, until special elections could fill vacancies. In the Senate, if 50 or more Senators were in burn units or intensive-care units in hospitals, or quarantined with smallpox, the body would be unable to operate indefinitely, until those Members could return to their jobs.
So what has Congress done to preserve the constitutional system against these nightmares? Basically, pass a resolution in the House urging states to speed up their special election processes to no more than two months. Commendable — but unrealistic, given the near impossibility, if there were 200 or more vacancies and national chaos, of conducting massive special elections, including possible primaries, in a short period of time. And, of course, even if this worked, it would still leave the country without a Congress for two months, at the worst possible time. [IMGCAP(2)]
The House task force on continuity also brought about a change in House rules to let the Speaker redefine a quorum to include only living House Members — given the flat language in the Constitution, a highly questionable step. If the bottom-line emergency plan for Congress is to allow it to operate with a handful of Members, allowing half a handful to chose a Speaker and perhaps an acting president, it is not enough. In any event, the task force, ably co-chaired by Reps. Christopher Cox (R-Calif.) and Martin Frost (D-Texas), appears moribund after the appointment of Cox to head the new House Homeland Security Committee.
It should be obvious that we need more, much more. We need a plan to preserve the House and Senate, to provide emergency, temporary appointments to the House to fill vacancies caused by widespread deaths, and to provide temporary appointments to both houses in the event of widespread incapacitation. (We also need a revamping of the Presidential Succession Act of 1947, and a plan to make sure we have an ongoing court of last resort, a Supreme Court, to rule on any of the many questions of legitimacy and constitutionality that will inevitably arise after a serious attack.)
Any reasonable study of the issues surrounding Congress will come to the conclusion that we need a constitutional amendment to provide those emergency, temporary appointments. But reasonable minds can differ on the form of such an amendment, and on the many specifics — what triggers the emergency action, who would make the appointments, how long they would serve, and so on — that would have to accompany it or be incorporated into it. It takes a substantial amount of debate and deliberation to come up with the best alternative. This is something Congress should have started nearly 18 months ago. It has held one hearing.
The Commission on the Continuity of Government, co-chaired by former Sen. Alan Simpson (R-Wyo.) and former White House Counsel Lloyd Cutler, has spent months examining alternative ways to deal with these problems surrounding Congress. A report will be issued in a few weeks. It will provide a blueprint, and boost, to Congress to move the process along.
There are a few signs of life on Capitol Hill — on the Senate side, at least. Senate Majority Leader Bill Frist (R-Tenn.) understands the problem, and the urgency. There will likely be hearings ahead in the Judiciary subcommittee on the Constitution, chaired by Sen. John Cornyn (R-Texas). A number of House Members, led by Reps. Brian Baird (D-Wash.) and including House Administration Chairman Bob Ney (R-Ohio) and former ranking member Steny Hoyer (D-Md.), have gotten engaged in the issues. But there has been no signal except business as usual from the Speaker and House leaders.
Imagine that one of these code orange alerts actually results in an attack on Congress. Imagine what a catastrophe if, at this moment of national tragedy, we had to rely on a form of martial law to preserve the union. Imagine an attack at the presidential inaugural, leaving open the very question of who’s in charge of each of the branches, including who is president. I am chilled by such visions. I hope, before it is too late, the leaders in Congress finally are as well.