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Sen. John Cornyn introduced a constitutional amendment Wednesday to ensure continuity of Congress in the event of disaster, but despite the Texas Republican’s efforts to find common ground with key Members in the other chamber, House Judiciary Chairman Jim Sensenbrenner (R-Wis.) issued a statement reiterating his opposition to the proposal.

The amendment and implementing legislation put together by Cornyn, who chairs the Senate Judiciary subcommittee on the Constitution, would allow — but not require — the states to pass laws permitting the emergency interim appointment of Members to the House in the case of mass death or incapacitation and to the Senate if large numbers were incapacitated.

“This is where the debate will start in earnest,” Cornyn said at a press conference. “There is some diversity of opinion as to whether there ought to be temporary appointments or expedited election process, [but] we can’t allow a stalemate to occur. I hope they realize that we don’t have time to take sides.”

Senate Rules and Administration Chairman Trent Lott (R-Miss.) has signed on to the implementing legislation as an original co-sponsor.

By deferring to the states to determine methods of succession and limiting the duration of any appointment to 120 days, the Texan’s proposal goes further than any yet suggested to assuage the opposition from key House Members, including Sensenbrenner and Rules Chairman David Dreier (R-Calif.). The Cornyn package allows states to choose appointment by the governor, the legislature or pursuant to a list of successors drafted by incumbent Members, some other mechanism or not at all.

In theory, even if the amendment is passed and ratified, the states could opt to continue having special elections as the only venue to replace House Members. But after the 17th Amendment allowed governors to fill Senate vacancies in 1913, 48 states passed laws giving that power to their chief executives.

Regardless, Sensenbrenner remains adamantly opposed to any amendment that permits the appointment of House Members on grounds that it would fundamentally change the character of the institution.

“[T]his proposal denies the people of their right to elected representation in the event of mass vacancies in the House of Representatives and allows rule solely by an unelected government for a significant period of time,” Sensenbrenner said.

“James Madison used the strongest of terms when stating the House must be composed only of those elected by the people. Madison wrote in the Federalist Papers that elections are ‘unquestionably the only policy’ by which the House can have ‘an intimate sympathy with the people,’” he continued. “The House — uniquely among all branches and bodies of the entire federal government — is rooted in democratic principles that must be preserved always.”

Cornyn responded in a statement that “Madison never foresaw Sept. 11.”

If large numbers of Members were killed in a terrorist attack, the Senate would be able to immediately reconstitute itself (because the 17th Amendment allows vacancies to be filled by governors), but the House could be inoperable without a quorum for a minimum of weeks, but more likely months. Both chambers could be unable to function if faced with mass incapacitation (which the Constitution doesn’t address).

Sensenbrenner’s statement mirrored what he told the House Administration and Senate Judiciary committees when he testified on the issue, but it’s particularly interesting now because of efforts Cornyn and his staff have made to find a compromise with Sensenbrenner and Dreier.

“There’s been a lot of back and forth” on both the Member and staff levels between the two chambers, Cornyn spokesman Don Stewart said. “We have and will continue to work with the House Members to find a bridge between the many positions, and more important, to pass this critical amendment and legislation before it’s too late.”

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