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Cornyn Amendment Offers Compromise on Continuity

Sen. John Cornyn (R-Texas) plans to introduce a constitutional amendment Wednesday that would allow Congress to provide for the replacement of lawmakers if one-fourth of the Members from either chamber are killed or incapacitated.

The amendment language and accompanying implementing legislation attempt to solve the most vexing political and logistical issues of Congressional continuity — namely, how to ensure the legislative branch is able to reconstitute itself quickly in the event of catastrophe, and how to overcome considerable opposition in the House to even temporary appointments.

Cornyn, who chairs the Judiciary subcommittee on the Constitution and has held multiple hearings on the subject, seeks to solve both problems by limiting the duration of temporary appointments to 120 days while leaving the decision about whether to have appointments at all to each state.

“Nobody relishes the idea of planning for their own demise,” Cornyn said in a statement. “But it would be far too late to establish a protocol for continuity after a catastrophe strikes the Capitol building. It’s been more than two years since 9/11 and we are long overdue in providing these critical safeguards.”

Under this plan, the amendment provides Congress the constitutional authority to craft a statute that would allow — but not require — temporary appointments to the House in the event 109 Members are killed or incapacitated and to the Senate if 25 Members are incapacitated. (The 17th Amendment provides for governors to appoint Senators in the case of death or resignation but has no provision for incapacitation. As it stands, the Constitution stipulates that vacancies in the House be filled by special election.)

The Cornyn amendment is silent as to what person or body determines incapacitation or vacancies and what entity, if any, would appoint temporary replacements, leaving such specifics to be determined by statute.

Cornyn’s accompanying legislation provides that state legislatures “may enact such laws declaring who shall serve in the place of such members as the state determines necessary,” which could be in the form of special elections, appointment by the governor or legislature, appointment pursuant to a list of successors drawn up by the incumbent House Member or other procedures. Each option (other than special elections alone) would require a special election no later than 120 days after the vacancy occurs.

The amendment itself provides for additional 120-day extensions if one-fourth of either body “remains vacant or occupied by Members unable to serve.”

The statutory language stipulates that one-fourth of House Members would be considered to have been killed or incapacitated if the Speaker (or his designee) makes a joint declaration with the Minority Leader (or his designee), or state governors individually certify, in the aggregate, that one-fourth of Members have been killed or incapacitated and so inform the president. In the Senate, such a determination could be made by the vice president, President Pro Tem (or either of their respective designees), or the governors, as in the House provision.

In the event that one-quarter of Senators are killed or incapacitated, the measure again directs state legislatures to determine, by law, who would serve: by gubernatorial or legislative appointment, appointment pursuant to a list of successors created by the incumbent Senator, or “such other procedures” the legislature deems appropriate. (Although Senators who have died can already be replaced by the governor, this provision allows incapacitated Senators to be temporarily replaced if one-fourth of Senators are killed and/or incapacitated.)

The bill also makes clear that incapacitated Members may reclaim their offices at any time.

The proposed amendment reads: ‘‘The Congress may by law provide for the case of death or inability of members of the House of Representatives, and the case of inability of members of the Senate, in the event that one-fourth of either House are killed or incapacitated, declaring who shall serve until the disability is removed, or a new member is elected. Any procedures established pursuant to such a law shall expire not later than 120 days after the death or inability of one-fourth of the House of Representatives or the Senate, but may be extended for additional 120-day periods if one-fourth of either the House of Representatives or the Senate remains vacant or occupied by members unable to serve.’’

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