A Senate subcommittee last week approved a constitutional amendment that would allow Congress to craft a legislative solution to the problem of mass incapacitation of Members due to a terrorist attack or other disaster.

The resolution — drafted by Sen. John Cornyn (R-Texas), who chairs the Judiciary subcommittee on the Constitution — is now before the full panel, where it is expected to pass.

Although all five Senators present voted for the measure, Sen. Edward Kennedy (D-Mass.) voted “no” by proxy, in part due to what he called “procedural concerns.”

In a “Dear Colleague” letter, Kennedy said he thought it “unwise to go forward in the Senate on a constitutional amendment until we have a clear view of the wishes of our colleagues in the House, since the primary need for the amendment is to fill House vacancies in case of emergency.”

In the letter, Kennedy asked the hearing to be postponed, citing “other commitments” that prevented him from attending. He questioned whether the problem could be addressed with “statutory and rules changes.”

Sen. Charles Schumer (D-N.Y.) expressed similar sentiments in a statement entered into the record. “Constitutional amendments should be our last resort,” he wrote. “All other solutions must be examined and rejected before we begin to tinker with the truly incredible work of our Founding Fathers.”

But while both Senators wrote that they have not heard enough to be convinced an amendment is necessary, neither attended several hearings Cornyn has held on the issue. At one, Cornyn chaired the full committee with a completely empty dais.

Thursday’s vote contrasted sharply with action taken earlier this month by the House Judiciary Committee, which reported out adversely an amendment by Rep. Brian Baird (D-Wash.) after a contentious debate and partisan vote.

As Cornyn pointed out during his opening remarks, the 17th Amendment allows for Senate vacancies to be filled by gubernatorial appointment, but it does not address the issue of incapacitation, which many experts believe is a much more likely doomsday scenario.

Perhaps more importantly, he said, neither chamber can fulfill its constitutional role without the other. “We can’t act as a Congress without both sides of the Rotunda,” he said.

While acknowledging that the “House is going to make its own choice,” Cornyn reiterated earlier assertions that his proposal is “agnostic” on temporary appointments — which are by far the most contentious part of the continuity debate.

“It’s important to separate the amendment from the enabling legislation,” he said.

Under his plan, the amendment would provide Congress the constitutional authority to craft a statute that would allow — but not require — temporary appointments to the House in the event 109 Members are killed or incapacitated and to the Senate if 25 Members are incapacitated. The states could then draft their own legislation to fill vacancies and deal with temporary incapacitation.

“This doesn’t mandate anything on the House at all,” Cornyn spokesman Don Stewart added. “It only allows us to do something that is currently unconstitutional. They can keep their law. We can pass our law.”

The House recently passed a bill to expedite special elections to 45 days after the Speaker certifies that more than 100 Members have been killed. (It does not deal with incapacitation.) The bill’s chief sponsor, Judiciary Chairman Jim Sensenbrenner (R-Wis.), dislikes Cornyn’s proposal because he adamantly opposes appointments to the House — even if the duration was limited to 120 days and the determination whether have them was left to the states, as Cornyn’s proposal seeks to do.

Cornyn recently spent nearly an hour on the phone with Sensenbrenner attempting to explain his position but was rebuffed. “Obviously, he has strong feelings about this,” Cornyn said. “My preference would be able to get something done rather than nothing.”

Sensenbrenner and many other House Members oppose temporary appointments on grounds that no one has ever served in that chamber without being directly elected, a point they believe was paramount to the Founders.

Baird and many constitutional scholars respond that the Founders placed as much, if not more, importance on the idea of a republic in which each district would be represented — that would not be the case if the House was reduced, by death or incapacitation, to only a few dozen Members, who may happen to be all from the same region or party.

Sen. Russ Feingold (D-Wis.) strongly supported Cornyn’s efforts at the markup Thursday, despite his longstanding reluctance to amend the Constitution.

Feingold said that he fully agrees with House Members “that there is something very special about a legislative body in which every Member is elected, not appointed.”

He also noted that his home state of Wisconsin requires special elections for even Senate vacancies. (Oklahoma and Oregon are the only other states that chose special election, rather than gubernatorial appointment, to replace Senators.)

Feingold has only supported an amendment only once in his 12 years in the Senate — a resolution for campaign-finance reform that he said he realized was not necessary soon after he voted for it.

But on this issue, Feingold ultimately decided that the continuity question offers “that rare situation when a constitutional amendment is justified.”

Feingold offered an amendment to Cornyn’s resolution to force the implementing legislation to be passed by the same two-thirds vote in both chambers that a Constitutional amendment would require, to ensure that a post-disaster scenario would not allow a “vehicle for a partisan effort to take over the Congress.” Feingold’s language received the subcommittee’s approval.

Cornyn agreed that such a threshold would engender legitimacy and said that the issue was one that “deserves bipartisan support.”