The Senate Judiciary Committee’s hearing Tuesday on continuity of Congress was remarkable for several reasons, perhaps none more than the debate’s relative purity.
It was the stuff of a high school civics class. The chairman took the dais with a seemingly open mind. The testimony was uninfluenced by partisan politics, ideological dogma or moneyed interests. The topic was the future of the country should terrorists effectively undermine the world’s longest-surviving democratic republic.
But none of the committee members, save the acting chairman, was there to hear it.
Sen. John Cornyn (R-Texas), who chairs the subcommittee on the Constitution, announced in June he would hold hearings on continuity. Deeming the topic of enough importance to bring directly to the full committee, Judiciary Chairman Orrin Hatch (R-Utah) requested Cornyn chair the entire panel.
But only ranking member Patrick Leahy (D-Vt.) showed up, and only to make his opening remarks. No one besides Cornyn heard Rep. David Dreier (R-Calif.) testify on the sanctity of direct election to the House. Rep. Brian Baird (D-Wash.), speaking about the insufficiency of expedited special elections to ensure the existence of the legislative branch, had a one-on-one conversation with Cornyn across the dais.
Fourteen of 19 committee members, including Cornyn, had conflicting committee meetings, most notably Armed Services, which was hearing testimony on Iraq war and reconstruction costs. But the room wasn’t packed with staff, either.
“There’s day-to-day stuff that’s important,” said John Fortier, executive director of the Continuity of Government Commission. “It’s easy enough to think you can do this later, but unfortunately the time table isn’t ours.”
The commission, a joint venture of the American Enterprise Institute and the Brookings Institution, released a report in June suggesting that a constitutional amendment authorizing the temporary appointment of House Members (and Senators in the case of incapacitation) is the only way to deal with what many believe is an intractable problem.
An attack on Congress could prevent the legislative branch from functioning at all, because a large number of vacancies could prevent the necessary quorum (or raise questions about the legitimacy of a small number of Members proceeding without one). And while the 17th Amendment allows the appointment of Senators, House Members have to be replaced by special elections — which currently take months. Additionally, mass incapacitation could prevent either body from achieving a quorum.
But the debate Tuesday and the lack of Members there to hear it exemplify the prospects of Congress taking significant steps this session on the issue of its own continuity: Very few Members in either chamber have been actively engaged in the topic, and the ones who have are sharply divided on whether a constitutional amendment is necessary.
“We’re now two years post-Sept. 11., [and] Congress has left all of the major issues about continuity unresolved,” Baird said in an interview.
“I believe that two years is too long to hold these hearings, but here we are,” said Cornyn, who was elected in 2002.
The Senate hearing Tuesday was one of only a couple held in either chamber in the past two years. The House Judiciary subcommittee on the Constitution held one hearing on an amendment proposed by Baird more than a year ago, but panel Chairman Steve Chabot (R-Ohio) scheduled no further hearings or markups on the subject.
Dreier, chairman of the Rules Committee, held a hearing earlier this year on creating a joint panel with the Senate Rules and Administration Committee to study the issue. The measure passed the House but has been stuck in Senate Rules for months because of objections by ranking member Chris Dodd (D-Conn.), who has said the issue doesn’t need to be studied further.
“The working group and the commission on continuity have made a great deal of progress in understanding the problems,” Baird said, referring to a working group chaired by Reps. Christopher Cox (R-Calif.) and Martin Frost (D-Texas) last Congress. “What we lack now is the will to solve them.”
The issues, Baird said, are of “sufficient magnitude” to merit debate before the whole House. He plans to hold a press conference Thursday criticizing the House leadership for the lack of movement. Last year 180 House Members signed a letter to Speaker Dennis Hastert (R-Ill.) encouraging a solution. Baird plans to propose a rule to allow various continuity proposals to be debated and indicated he’s willing to circulate a discharge petition to force consideration of the measure.
“It is my hope and it would certainly be appropriate for the leadership to call for a full week, near the end of the calendar, during which the various issues that have come up would be debated at some length, and at the end of that hopefully take some action and move forward,” Baird said. “That deserves time, without necessarily assigning through the filters or committee chairman.”
Baird’s desire to see the issue debated outside the confines of the committee structure, at least in the House, stems in large part from the chairmen of the Rules and Judiciary panels, Dreier and Rep. Jim Sensenbrenner (R-Wis.), respectively. Both oppose a constitutional amendment.
Together with Rep. Candice Miller (R-Mich.), the two have introduced a bill that would require the states to expedite their special elections to hold elections within 21 days if the Speaker declares more than 100 House Members have died.
AEI scholar Norman Ornstein, a Roll Call contributor who served as co-counsel to the continuity commission, testified along with elections experts at the Senate hearing that such a timetable was impossible — or at the very least would disenfranchise a significant portion of the electorate, including military personnel. Cornyn was sympathetic to such arguments and submitted 34 letters from state and local elections officials around the country expressing concerns about such a sped-up timetable.
But the debate between Dreier and Baird on whether special elections could indeed be expedited epitomized the differences between the two schools of thought.
Dreier maintained that the independent commission’s determination that special elections would take a minimum of three months was based on false assumptions and only a relatively small sample of the states.
“If September 11 showed us anything, it’s that Americans are capable of extraordinary [things] in times of crisis,” Dreier said. Such logistics as printing ballots, hiring poll works and certifying candidates are but small obstacles, he maintained, as Americans will rise to the challenge.
Baird retorted that he doesn’t buy Dreier’s notion of universal sagacity: “My experience suggests quite the contrary.” Putting on elections is an extremely complicated process and wrought with potential for fraud, he said.
And the issues get even more fundamental.
“My message, Mr. Chairman, is a pretty simple and basic one. I want to go forward slowly on this,” Dreier said. “The Framers did not come up on this document in a single moment of inspiration,” he said, adding that they created two very different bodies in terms of size and prerogatives.
“Beneath its plain brown wrapping,” an amendment to appoint House Members is “the constitutional equivalent of a computer virus [which could] cause the Framers’ checks and balances to crash,” Dreier said.
Baird made the exact opposite point about checks and balances. It’s ironic, he said, that those who hold direct elections as paramount would let unelected people, most likely Cabinet members, run the country if a catastrophic event hit Washington and the president, vice president and most of Congress were killed. In that scenario, without a functioning Congress, the executive branch would act with “extra-constitutional” powers.
“Checks and balances and separation of powers are equally important, perhaps more so, than direct election,” Baird said.
Congress has let two years go by, Baird said, without beginning to fix this problem: “It’s has been too long. The entire Constitution was written over a summer.”