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Commission Urges Constitutional Amendment Allowing Emergency House Appointments

The Continuity of Government Commission will issue a report today recommending Congress amend the Constitution to fill vacancies by appointment should a large number of House Members be killed or incapacitated.

The commission, a private study group sponsored by the American Enterprise Institute and the Brookings Institution, was formed in 2002 in the wake of concern about future terrorist attacks in Washington, D.C.

AEI Resident Scholar Norman Ornstein, a commission member and a Roll Call contributing writer, explained Wednesday that an amendment is needed to ensure speedy appointments to the House. The Constitution currently stipulates that in case of a House vacancy, the governor call a special election. (Senate vacancies are already by gubernatorial appointment.)

The commission estimates that special elections require, on average, four months to fill vacancies.

In case of a catastrophic loss of Members, Ornstein said, that’s too long to wait. “If the trade-off is having no Congress for months at the worst possible time, then I simply think there’s no contest,” he added.

The newly formed Committee to Preserve An Elected Congress, headed by conservative watchdog Phyllis Schlafly, isn’t so sure, however.

Charles Rice, a professor emeritus of constitutional law at the University of Notre Dame and a member of Schlafly’s committee, said today that the four-month estimate was inaccurate. “I can’t imagine that it would not be possible to cut that time down substantially,” he said.

He added that he does not favor amending the Constitution. “I don’t think we need to do it,” he said, explaining he favors preauthorized stand-by legislation with a sunset clause authorizing the chief executive to run the government while special elections are being called.

“It’s a big mistake to introduce into the House of Representatives the concept that Members of that body can be appointed,” he said.

Ornstein said he prefers an appointed Congress rather than increased executive power. “It’s ironic that a group of conservatives who favor limited government would favor a form of marshal law, unchecked and unfettered government.”

He added, “We have a new reality now. I don’t favor having the House becoming like the Senate in a routine way. What we’re talking about would take effect here only in the case of catastrophe.”

Ornstein added he is hopeful Congress will pass an amendment soon. “We don’t know what will finally jolt Congress into moving into this,” he said, adding one requirement is Congress “overcoming the natural desire people have to avoid talking about their own demise.”

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