Two and a half years after a hijacked plane was believed to be headed for the Capitol Dome while both chambers were in session, the House is set to take up a bill this week aimed at ensuring the continuity of the legislative branch should more than 100 of its Members be killed.
A small but growing faction of House Members, however, believe the legislation to expedite special elections inadequately protects Congress’ prerogative in the event a terrorist attack incapacitated or killed dozens or hundreds of lawmakers. Even as the leadership prepares to bring up Judiciary Chairman Jim Sensenbrenner’s (R-Wis.) bill Wednesday or Thursday, Rep. Brian Baird (D-Wash.) plans to hold a press conference today to disparage the Republican leadership’s refusal to permit floor debate on proposals to amend the Constitution and promote his discharge petition to bring alternatives before the full House.
“The House has waited far too long to debate and solve the problem of Congressional continuity,” Baird said in a statement. “The 9/11 commission hearings illustrate the need to address threats as early as possible, and this Congress has now been idle for two and a half years, denying full, fair debate on the issue of its continuity. This is unacceptable, and I urge my colleagues to join me on this petition to bring a variety of solutions to the House floor for debate.”
A Judiciary subcommittee held one hearing on prospective amendments two years ago, but it was clear at the time it would be the only such hearing. In recent weeks, however, Sensenbrenner has softened his opposition to allowing the issue to come before his committee again, stating that after his bill passes, which is expected, he will continue to look for other solutions to what most experts view as an intractable problem: Even if special elections could be held within the 45 days as Sensenbrenner’s bill prescribes, the country could still be without a functioning House, and thus Congress, during a time of national crisis, allowing the executive branch unchecked authority for a protracted period.
Staffers on both sides of the aisle say they have received strong indications in recent weeks that Judiciary may hold hearings later this session.
“I don’t know anything firm at this point. Obviously we are going to continue to monitor all the continuity issues, as we have already,” said Judiciary spokesman Jeff Lungren, adding, “The amendments are not gaining a whole lot of steam if you are judging by co-sponsors.”
Although House GOP leaders, including Speaker Dennis Hastert (R-Ill.), have voiced their strong support for Sensenbrenner’s bill and a distaste for amending the Constitution, they have acknowledged for the first time in recent weeks that his legislation might not be enough.
“I don’t believe that it fully answers the potential challenge we would face. I do believe it is the first and most important building block,” House Majority Whip Roy Blunt (Mo.) said in an interview late last month. “It doesn’t deal with the problem if 300 people are temporarily incapacitated.”
He said those issues could be addressed with a rules change, perhaps by establishing a quorum as being composed of “living and able” — dropping “sworn” — Members without declaring the seats of incapacitated Members vacant.
Members of the independent commission that spent a year studying the continuity of Congress opposed this approach, arguing it didn’t square with the constitutional quorum requirements of a majority of the whole body. Additionally, the group of former Members, administration officials and constitutional experts asserted that legitimacy and confidence could not be ascribed to a House in which a handful of Members were acting on behalf of all the districts that no longer had a designated voice.
Another non-amendment approach to overcoming the quorum issue that has been raised — that either chamber could proceed without a quorum so long as no one objected — was also dismissed by the commission on grounds that under normal circumstances, during which no one objects to the absence of a quorum in the chamber, it is implied that the requisite number of Members could materialize. For either body to proceed with business when large numbers are sick or dead on the fiction that such a majority could appear, the experts said, would pose a grave threat to democratic ideals.
Responding to such criticism, Blunt said he would prefer that “seven people for seven or eight weeks” run the House rather than have a “House that is chosen by someone or in some other way.”
“At the same time,” he added, “I am not opposed to seeing the House debate whatever constitutional amendment would have the most support from others. The best way for that to happen is for an amendment to have a broad base of support. I am certainly sympathetic with Chairman Sensenbrenner that there’s merit at least to develop [that support] before taking the time of the House.”
Baird — who has been seeking to bring this issue to the fore since the afternoon of Sept. 11, 2001 — believes that is somewhat of a Catch-22: It’s difficult to garner support for such a complex and grave issue without a forum for dialogue.
Rep. Martin Frost (D-Texas) recently signed on as the Washington Democrat’s first co-sponsor on his amendment proposal. Neither Reps. John Larson (D-Conn.) nor Zoe Lofgren (D-Calif.) have co-sponsors on their own constitutional approaches.
The Republican leadership’s opposition to amending the Constitution to allow the temporary appointment of House Members before special elections could be held was complicated recently, however, by Rep. Dana Rohrabacher’s (R-Calif.) decision to craft language of his own, as it put a House Republican on record supporting an amendment. His proposal would allow Members to draw up a list of three to five temporary successors, in order of preference, from which governors would appoint to fill vacant seats. The plan avoids the so-called “threshold” question by using the same approach even during routine vacancies, essentially allowing the House to have 435 seats occupied at all times.
“Indirectly I have been hearing that later this year they may be holding hearings on amendment proposals,” said Rohrabacher’s chief of staff, Rick Dykema. He also indicated that his boss would not sign the discharge petition, at least not immediately. “We don’t intend to sign the discharge petition at this point because Mr. Rohrabacher just introduced his proposal and we wanted to give the Judiciary Committee plenty of opportunity to examine it and not force their hand at this point.”
So far, Rep. Jerrold Nadler (D-N.Y.) is the sole co-sponsor of the petition, but Baird plans to begin actively seeking others this week. The rule Baird’s petition would discharge allows the entire House to consider several different constitutional amendment proposals. The proposal receiving the most votes will then be subject to further amendment.