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Rohrabacher: Govs. Fill House Vacancies

Rep. Dana Rohrabacher (R-Calif.) introduced a constitutional amendment last week that would allow governors to make temporary appointments to both chambers in the event a Member dies or is unable to discharge his or her duties, even in the absence of a national emergency.

Rohrabacher’s language would repeal the 17th Amendment, which allows governors to appoint lawmakers to fill vacant Senate seats, and replace it with a uniform system for both chambers inspired by the executive branch. Much as the president chooses his own potential successor in selecting a vice president before the election, candidates running for Congress would draft a list of three to five individuals who they would have succeed them temporarily if they should die or become incapacitated. Although his proposal was drafted to ensure Congress would continue to function in the event of terrorist attack or other catastrophe that killed or sidelined large numbers of Members, Rohrabacher’s amendment would fundamentally alter the way vacant seats are handled in the House and, if acted on, would address the issue of incapacitation for the first time in either chamber.

Rohrabacher joins four other lawmakers who have introduced continuity amendment language in this Congress. He is the first House Republican to do so, and said he is hoping to break the current impasse in the chamber.

Attempting to address the “major criticisms” that have been leveled against the amendments introduced thus far, Rohrabacher said the problem “of how to determine when sufficient Members have died or been incapacitated to trigger emergency procedures is avoided in my proposal because no such determination is necessary.”

“If a congressional continuity solution is good enough to use when 110 Representatives are killed or disabled, it should be good enough to use when 50 or 20 or even one Representative dies or becomes unable to discharge his or her duties. Continuity of Congress is certainly important, but so is continuity of representation. Death or incapacity of Representatives and Senators (as in the case of the late Sen. Paul Wellstone [D-Minn.]) should not change the control of either House of Congress or the outcome of votes,” he said in a statement introduced into the Congressional Record.

“Also, the legitimacy of a congressional succession plan is more likely to be accepted in a national emergency if it has previously worked in smaller tragedies.”

Over the past year, Judiciary Chairman James Sensenbrenner (R-Wis.) and Speaker Dennis Hastert (R-Ill.) have both let it be known that they oppose appointments to the House in any form, even temporary ones in a time of national emergency. Sensenbrenner had refused to hold a hearing on constitutional amendments on the grounds that proponents lacked widespread support in the chamber.

Recently, however, Sensenbrenner has softened his tone and said he will consider other ideas in addition to his own bill, which would expedite special elections to within 45 days after the Speaker declares more than 100 Members have been killed (it does not deal with incapacitation).

Additionally, House Majority Whip Roy Blunt (R-Mo.) has held informal talks with Rep. John Larson (Conn.), one of three Democrats to introduce amendment language in the House. There have also been staff-level discussions about how to address concerns by the three Democratic drafters of amendment language whenever Sensenbrenner’s bill comes to the floor. In addition to Larson, Reps. Zoe Lofgren (D-Calif.) and Brian Baird (D-Wash.) have introduced amendment resolutions .

Sen. John Cornyn (R-Texas) also has drafted language.

Rohrabacher’s proposal is similar to Baird’s in that both would have candidates draw up lists of potential temporary successors to fill their House seats until special elections could be held. But Rohrabacher’s amendment would require that governors select nominees in the order they were listed, whereas Baird’s proposal would allow the state executives to choose from among the Member’s selections.

“We think that the list should be in the order specified by the Senator- or the Representative-elect,” said Rick Dykema, Rohrabacher’s chief of staff.

The Californian’s proposal also goes further than those of other Members’ in that it disposes of the 17th Amendment and creates uniformity between the chambers for temporary appointments.

“My proposal would allow governors to appoint temporary Senators and Representatives only if the elected Senator or Representative has not submitted a list of successors or if none of the listed successors is able to serve. This backup appointment authority provides an incentive for Senators and Representatives to make sure their ‘political will’ is in order, since otherwise their governor could appoint someone they may not like,” he said.

Dykema indicated that his boss has yet to discuss the proposal with Sensenbrenner, but he has shared his plans with the Speaker’s office as well as Judiciary.

“I have not gotten any comment back specifically, but I also have not gotten anything that says, ‘No way would we never consider this,’” Dykema said. The resolution currently has no co-sponsors, but Dykema said a “Dear Colleague” letter would be forthcoming to seek Members’ support.

House Judiciary spokesman Jeff Lungren said committee staff are evaluating Rohrabacher’s proposal.

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