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Continuity of Congress — A New Proposal

Much has been said over the last couple of years about the need to make sure we have a functioning Congress that is perceived as legitimate in the case of a national disaster that kills or incapacitates a large proportion of Members of Congress. But so far, none of the proposals introduced during that time has been able to appeal to a broad, bipartisan cross-section of Congress. I’m hoping to change this situation with my Congressional succession constitutional amendment (H.J. Res. 92) that I introduced just before the recess.

Under my proposal, each general election candidate for the House or Senate would be authorized to appoint, in ranked order, three to five potential temporary successors. For his appointments to be valid, the successful candidate would have to have submitted them in publicly available form at least 60 days prior to the election. In the case of the elected legislator’s death or incapacity, the highest-ranked person on the list of successors who is able to serve would become the acting Senator or Representative.

The legitimacy of a successor designated under H.J. Res. 92 temporarily succeeding a deceased or incapacitated Representative or Senator is similar to that of a vice president succeeding a deceased or incapacitated president — not separately elected, but chosen by the principal and known well in advance of the election. Governors would be empowered to appoint temporary replacements only if no list is submitted, or if no one listed is able to serve.

The solution to the “continuity of Congress” problem lies in solving the “continuity of representation” problem. If you want to have temporary replacements for Senators and Representatives with the least amount of change in the composition of Congress, each replacement should be politically as much like the deceased or incapacitated Member as possible. Who better to determine who fits that bill than the elected official?

There’s no reason to limit an adequate solution to the continuity of representation problem to a situation horrible enough to kill or incapacitate a quarter or more of the House. Even 50 or 20 Representatives being killed or incapacitated could make a profound change in the direction and control of the House. And the death or incapacity of even one Representative deprives 600,000 U.S. citizens of representation for the several months it typically takes for the vacancy to be filled. 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.

When state governors use their current power under the 17th Amendment to appoint temporary Senators, they naturally appoint someone who is politically like themselves, even if that appointee is the complete political opposite of the deceased Senator. We saw this played out most recently in the aftermath of the death of Sen. Paul Wellstone (D-Minn.), when control of the Senate was in the hands of the third-party governor of Minnesota. Also, during the 107th Congress there was a constant theme of speculation about the fact that the death in office of the aged and ailing Sen. Strom Thurmond (R-S.C.) would allow the Democratic governor of South Carolina to change party control of the Senate for up to two years.

The current practice in the House of allowing death or incapacity to result in leaving the seat vacant and the district unrepresented for months isn’t very democratic, either. Nor is having party bosses appoint House nominees in accelerated special elections as specified in H.R. 2844, which we’ll be debating on the floor later this week.

There are valid concerns on both sides of the current continuity of Congress debate. One side wants to assure the continuity of Congress by having immediate replacements available in the event of a national catastrophe. The other wants all House replacements, no matter how temporary, to be chosen through the electoral process. I’m hoping my colleagues on both sides of the debate will agree that H.J. Res. 92 achieves their objectives.

Rep. Dana Rohrabacher is a Republican from California.

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