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Continuity Amendment Clearly Isn’t Desirable, But It’s Necessary

The continuity issue is finally on the Congressional agenda, 21 months after the Sept. 11, 2001, terrorist attacks. When the leadership of the Continuity of Government Commission met with the four top Congressional leaders, it was clear they knew about the gravity of the problem and had begun to think seriously about solutions. And, of course, at the same time the commission was announcing its first report on Congress, the House was moving to create a joint committee on continuity issues, focusing particularly on rules. [IMGCAP(1)]

I knew we had arrived on the serious track when opposition popped up, starting with a new group led by the redoubtable Howard Phillips and Phyllis Schlafly, followed quickly by Texas GOP Rep. Ron Paul (better described as a super-Libertarian). Phillips, Schlafly and Paul all have the same objection: Nothing should be countenanced that even hints at losing the House’s status as a wholly elected body (the Phillips/Schlafly effort is called the Committee to Preserve an Elected Congress).

I do not want to suggest that this concern is the exclusive property of the right end of the political spectrum. Reps. Vic Snyder, a moderate Democrat from Arkansas, and David Dreier, a mainstream conservative Republican from California, have also raised it, as have many of their colleagues.

It is a wholly legitimate and important concern, one that must be dealt with if the critical mass of Members necessary to move on the continuity question is to emerge — before it is too late. So I want to deal with it here, in a frontal fashion.

First, a preface. The unanimous recommendations of the Continuity of Government Commission came from 15 commissioners, including former House Members Newt Gingrich (R-Ga.), Tom Foley (D-Wash.), Leon Panetta (D-Calif.), Kweisi Mfume (D-Md.), Bob Michel (R-Ill.) and Lynn Martin (R-Ill.). They all love the House of Representatives and do not wish to make it like the Senate, remove its exalted status as an elected body or reduce in any way its role in the American constitutional system.

To the contrary. None of the commission members likes constitutional amendments. But they all came inexorably to the conclusion that an amendment to allow temporary appointments to the House in the case of widespread deaths, or both the House and Senate in the case of widespread incapacitation, is necessary.

Why? First, they saw the clear nature of the threat. The Schlafly/Phillips group says a problem “does not exist.” Paul says “our government leaders are no more vulnerable today to mass extinction than they were 20 years ago.”

Really? Consider Sept. 11, 2001. There is little doubt now that United flight 93 was headed for the Capitol Dome, and would have reached it that morning had the plane taken off on time (the 40-minute delay allowed the passengers to learn from family members that they were on a suicide mission, not a routine hijacking). Had it hit the Dome and exploded, debris, burning jet fuel and molten cast iron would have rained down on those in the building and on the grounds around it, causing mass deaths, dismemberment and burns. No one knows how many lawmakers would have been killed, but many, many Members, including most leaders, were in the Capitol that morning.

Add to that the recent FBI report suggesting that al Qaeda forces around the world have access to a range of chemical, biological, radiological and nuclear weapons. In an eerie echo of the prescient Hart/Rudman Commission report, the security experts say, “There is a high probability that al Qaeda will attempt an attack using a CBRN weapon within the next two years.” And, of course, we know al Qaeda has targeted our government institutions, and has a history of returning to the targets that were not taken out the first time.

What happens if al Qaeda or another terrorist outfit manages to set off a dirty bomb or a suitcase nuclear bomb near the Capitol? What happens if the next weaponized anthrax attack is a more serious one, aimed directly at the ventilation system in the House or the Senate? The odds are that a wide swath of one or both chambers will be killed or incapacitated. What happens then?

One option: There is no House for a sizable period of time — with a vacuum filled by an executive branch eager to expand its powers in a version of martial law.

Or there is a partial House, with perhaps a handful of Members who happened to be away from the catastrophe, who reconstitute the body and make decisions. Actually, under the latter scenario, a half-handful would constitute the quorum that could make the decisions, up to and including choosing a Speaker who might then become acting president.

Balance the options: no House and martial law, a wildly unrepresentative small group acting as the House. Or a House with a full representation of the politics and geography of the country, consisting in part of Members who are appointed only until duly elected Representatives replace them, or until incapacitated Members can return to their posts.

It would be nice — oh so nice — if there was a reasonable option short of a constitutional amendment allowing for temporary appointments in the case — and only in the case — of a huge catastrophe decimating Congress. The best we have come up with is an expedited process for special elections within two months. Some opponents of the constitutional amendment have suggested we could hold elections within three weeks.

Forget it. Imagine the state of the country immediately after an attack more devastating than 9/11. Imagine hundreds of special elections called, framed and set in a matter of weeks — polling places and workers secured, candidates selected, ballots printed. It cannot be done. If the parties figured out within a couple of weeks how to pick their candidates (it is not clear under many state procedures that it could be done without primaries or other cumbersome processes), millions of ballots with the appropriate names on them would have to be printed within a matter of days — an impossibility for the handful of vendors who do such work around the country.

If it somehow could be done, the only candidates who could make it would be the notorious and the multimillionaires, creating a wildly skewed House with a slew of already-elected individuals much more insulated from future removal than appointees (half of Senate appointees are bounced when they seek subsequent election). And even if those problems did not emerge or are discounted, we would still be without a House for several crucial weeks — weeks in which decisions like authorizing military force, passing laws, appropriating money for disaster relief and military action, suspending habeas corpus, or enacting a new version of a Patriot Act would be made without the check and balance of the House.

We simply cannot allow something like that to happen. I am astonished that champions of limited government like Howard Phillips shrug off the threat of such a months-long vacuum.

If one really believes that the threat to Congress is trivial or overblown, there is an easy way to achieve consensus on this issue. Make sure that any constitutional amendment allowing for temporary appointments can take place only if there is a huge catastrophe. Set the threshold very high and make it very specific so that no minor event and no mischievous actors can trigger an undesirable outcome.

Consider, for example, my preferred trigger: In the event of a catastrophic act, the states’ governors would each canvass the condition of their House and Senate delegations. If half or more of a delegation is dead, missing or seriously incapacitated, the governor would sign a proclamation to that effect. Only when a majority of governors have signed such proclamations — in other words, only when the disaster is widespread in every way — would a temporary appointment process be allowed.

None of us wants temporary appointments. None of us wants a constitutional amendment of this sort ever to be used. But I, and the commission members, believe that anyone who truly loves the House and loves our constitutional system cannot shrink from the reality of the threat or avoid the bottom line of what is necessary for Congress to do to write a meaningful will to the American people.

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