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Congress Must Act to Keep the Legislative Branch Unbroken

In the two and a half years since the Sept. 11, 2001, attacks, a serious question has been hanging over Congress that few have been willing to touch: Should the Constitution be amended to provide for the appointment of temporary Members of Congress to replace those who are killed or incapacitated in a catastrophic occurrence?

Unfortunately, any serious discussion of this question is rapidly dissolving in the acid of personal attacks on Members who oppose such an amendment. They have been accused by some outside amendment proponents of being of questionable brainpower, stubborn, arrogant, bullies, heads-in-the-sand ostriches, guilty of hubris, and even al Qaeda collaborators. Ironically, the ad hominemistas hurling these epithets are the same people who denounce Congress for its lack of civility. Go figure.

The principal targets of these attacks are two well-respected House committee chairmen, Reps. Jim Sensenbrenner (R-Wis.) of Judiciary and David Dreier (R-Calif.) of Rules, who have sponsored legislation calling for expedited special elections. Under their bill, elections must be held within 45 days of more than 100 Members being killed under extraordinary circumstances. (I have previously testified and written against a constitutional amendment and for a 60-day special elections timetable if more than half the House is lost.)

The House Administration Committee approved the Sensenbrenner-Dreier bill on a 4-3 party-line vote in November, and the Judiciary Committee cleared it on an 18-10 party-line vote in January. Minority Democrats on both committees objected in part to the fact that a constitutional amendment was not being considered concurrently.

What is often lost in this whole controversy is the fact that the constitutional and statutory approaches to ensuring the continuity of Congress are not mutually exclusive. They can be seen as complementary. Even the report from the privately created Commission on the Continuity of Government, which favors some form of a “concise” constitutional amendment, says, “expediting special elections is helpful but not sufficient,” and states that “the commission prefers that mass vacancies be filled quickly by temporary appointments and that special elections take place within 120 days, giving states the ability to hold primaries if they choose.”

The commission also notes, however, that “under ideal circumstances states could hold elections within two months if they dispensed with party primaries and drastically accelerated other aspects of the campaign,” although it “estimates that even the most expedited elections would take a minimum of three months.”

The constitutional amendment approach deserves a great deal more discussion and consideration, especially when you consider that there is still no consensus on what form it should take, even though its various proponents inside and outside Congress have been batting the issue around for two years now. The most prominent proponent of a constitutional amendment today is Rep. Brian Baird (D-Wash.), who has introduced two different versions in this Congress alone, but has no other House Members as co-sponsors. That’s 86 fewer co-sponsors than he had in the 107th Congress — hardly an indication of forward momentum for the cause.

Baird has threatened a discharge petition if the Judiciary Committee does not act on his amendment, but that’s a rather hollow threat if he cannot even produce a respectable list of co-sponsors. Should he approach the 200 mark, he might be given a more respectful hearing. If he were still refused serious committee consideration, then a determined House majority could always force consideration by discharge petition as was demonstrated with the bipartisan campaign finance reform bill in the previous Congress.

However, even if a majority can be mustered to discharge the measure, it still takes two-thirds of both houses to send an amendment on to the states, and three-fourths of the states to ratify it. Don’t hold your breath on its prospects.

In the meantime, though, Members and outside interested parties should set aside their personal differences and attacks on each other and join forces in developing a workable, expedited special elections bill.

The Marines have a saying: “The difficult we do today; the impossible will take a little longer.” It should be obvious that Congress does not have the luxury of time to wait for all the stars to simultaneously align on both a constitutional amendment and a statutory fix. The time has come to tackle the difficult now, and let the impossible take care of itself tomorrow.

Should Congress not take this minimal first step now, the first branch of government could become an irreparably broken branch if the once unthinkable becomes a reality.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.

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