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Dreier Airs Proposal on Incapacity

For the first time, senior House Members have publicly detailed how Congress might proceed if a majority of lawmakers were incapacitated in a terrorist attack or other disaster.

A proposal by Rules Chairman David Dreier (R-Calif.) — which he termed a “discussion draft” — would allow the Speaker to temporarily reduce the number of Members serving in the chamber for the purpose of calculating the quorum needed to proceed with business.

Under the proposal, the Speaker would reduce the number required after two lengthy quorum calls had failed and certification was made that “catastrophic circumstances have left the House unable to produce a quorum.”

Many specifics of Dreier’s plan were left open, including just how long each quorum call would be — hours, days or weeks — and who would advise the Speaker, possibly the Sergeant-at-Arms, as to why the chamber couldn’t garner the necessary majority of Members “chosen, living and sworn” that are necessary to proceed with business.

The existing standard was set by Speaker Joe Cannon (R-Ill.) in 1906 but not codified until the beginning of the 108th Congress, when the rules were modified to allow the Speaker to adjust the whole number of the House, and thus its quorum, upon the death or resignation of Members.

As the rules now stand, if 200 Members died in an attack, the whole number of the House would then be 235, and a quorum of 118 would allow the House to conduct business. But under current rules, incapacitated Members would still be included in the quorum calculations. That means that if 200 Members were alive but unable to make it to the chamber, House business would be paralyzed.

Dreier’s proposal, and a series of rules changes enacted at the beginning of last session, came out of deliberations by a continuity working group chaired by Reps. Christopher Cox (R-Calif.) and Martin Frost (D-Texas). The group, created after the Sept. 11, 2001, terrorist attacks, set out to take a three-pronged approach to ensuring the House could continue to operate: modifying the rules, then enacting statutory changes, and finally assessing the need for a constitutional amendment.

Significant rules changes were made last year to allow each chamber to meet outside the Capitol and to vest authority in the Speaker to designate a list of temporary successors should he or she be unable to gavel the chamber in to session. But, Frost, the ranking Democrat on Rules, pointed out at Thursday’s hearing Thursday that while the moves made so far have been important, House leaders “have not dealt with the larger issue.”

Aides involved with continuity issues said it was unclear why more than a year and a half has passed between the dissolution of the working group and the hearing on incapacitation, which many Members and outside experts have held up as the gravest challenge to House’s continued operations after a disaster.

“I don’t think its a priority” for the chamber’s leaders, said one aide. “The opposition of [Judiciary Chairman Jim] Sensenbrenner to doing anything real about this has been a deterrent to anybody doing any action.” In the absence of leadership, it is congressional staff who have pushed the issue along. “I don’t think Members understand the enormity and the gravity of this,” the aide said. “It is a big issue that Members are not paying attention to.”

Dreier said at the hearing that it takes time to work through such complex issues. “A lot of thought has gone into this by a lot of people,” Dreier said at the hearing, adding that significant questions remain.

For his part, during debate last month on his bill to expedite special elections in the event that more than 100 Members were killed, Sensenbrenner agreed to report out a constitutional amendment by Rep. Brian Baird (D-Wash.). Judiciary officials announced last week that it would take place during the next markup, scheduled for Wednesday. One subcommittee hearing on the proposal was held during the last Congress, which Sensenbrenner has steadfastly maintained was enough to gauge Member support.

Dreier acknowledged that Judiciary would likely report out the resolution “adversely,” but Speaker Dennis Hastert (R-Ill.) plans to bring the measure to the House floor regardless, as part of an agreement brokered by Majority Whip Roy Blunt (R-Mo.) and Minority Whip Steny Hoyer (D-Md.), who has expressed concern that the chamber has not spent enough time debating a matter so fundamental to the institution.

Baird has said he is uncomfortable with the decision to bring up only his language and not that offered by his colleagues, including Reps. John Larson (D-Conn.), Dana Rohrabacher (R-Calif.) and Zoe Lofgren (D-Calif.).

Larson sat through the entire three-hour Rules hearing last week — a fact that did not escape the notice of Dreier or the handful of other panel members present, almost all of whom commented on his attendance in the audience. Dreier praised his diligence and thoughtfulness on the issue.

In fact, the congenial atmosphere during Thursday’s hearing was a marked shift from the often sharp-tounged debate on Sensenbrenner’s bill — even if, according to the Democratic aide, the “so-called bipartisan committee hearing” wasn’t prepared in a bipartisan way.

Parliamentarian Charles Johnson, his two deputies and Walter Dellinger, a former solicitor general in the Clinton administration, all advised the committee to proceed in a bipartisan fashion so that if the rule ever needed to be invoked it would elicit the most confidence from both Members and the public.

“I think there is a great advantage to adopt a rule now if we can get widespread bipartisan support,” Dellinger said.

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