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Workable Quorums Are Vital to Solving Crisis on Continuity

What is a quorum? That question —how many members of a body are required in order to do business — is a central one for legislatures. It is also the centerpiece of nearly all the issues surrounding the continuity of Congress in the event of a terrorist attack. [IMGCAP(1)]

Here is the relevant constitutional provision, from Article 1, Section 5: “a Majority of each [house] shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.”

The language of the Constitution, in this case, is plain and unambiguous: a majority of each house, meaning a majority of all the members. The fact that the Constitution explicitly endorses a small number for other purposes underscores the fact that the framers meant “a Quorum to do Business” to be a majority of the members — period.

The framers wanted a broadly representative Congress. They did not want a tiny, unrepresentative slice of either chamber — as was allowed in the British House of Commons — doing the peoples’ business and claiming to represent the country. The provision allowing a smaller number to compel attendance was intended to ensure that recalcitrant lawmakers did not simply stay out of the chamber and prevent action on occasions when a quorum was clearly available. (That scenario had happened with some frequency in colonial legislatures.)

Beginning in the Civil War, both houses of Congress refined the quorum as a majority of those chosen, sworn and living. Before 1890, the quorum meant a majority of those voting. In 1890, Speaker Thomas Reed (R-Maine) broke the practice of Members appearing in the chamber but trying to block action by refusing to vote. Reed declared that he would count them for purposes of a quorum, causing an uproar.

The Supreme Court ratified Reed’s practice in the Ballin decision in 1892 — an important precedent for giving Congress leeway to set its own standards. But the Ballin decision did not allow Congress to violate provisions of the Constitution. In other words, it does not allow Congress to set a quorum below a majority of the membership.

In an age of large terrorist actions, the quorum issue comes into play in two circumstances: if large numbers of members of Congress are killed, and if large numbers of Members of Congress are rendered incapacitated for extended periods of time. These are not mutually exclusive circumstances, of course. If United 93 had hit the Capitol Dome on 9/11, we probably would have had many Members killed and many more in burn units or intensive care units for months. (Not to be too morbid, but we also would have had uncertainty for some time as to who was alive, missing or dead under the rubble of the building.)

If Members of the Senate are killed, the 17th Amendment to the Constitution allows states to replace them by appointment, and most states use this method when vacancies occur. (Three states — Oklahoma, Oregon and Wisconsin — still insist on special elections to fill vacancies.) In the House, though, vacancies can only be filled by election.

Under the long-standing rules and precedents of the House, a quorum consists of a majority of living members, but a smaller number than 218 could do business in the event of widespread deaths. Say 250 members of the House were killed in a terrorist attack; 185 would be left alive, and 93 would comprise a quorum. That might suffice as an interim measure — but what if 380 were killed, leaving just 18 as a quorum? Or what if the 35 members remaining were all from the same party? The notion of a house of Congress operating with three or four percent of its membership, making decisions such as suspending habeas corpus or declaring war, would have been utterly anathema to the framers —and should be to the rest of us. The same should hold even if the other chamber is able to get itself up to full or nearly full membership quickly by virtue of gubernatorial appointments.

But even if we swallow hard and accept that possibility, the problem of incapacitation looms larger. Under the longstanding interpretation of the quorum as a majority of those elected, sworn and living, there would be no quorum if large numbers of Members were alive but incapacitated, there is no quorum. If the anthrax attack on the Senate had been an al Qaeda operation to put a highly weaponized form of anthrax into the Senate ventilation system, we might have had 70 senators in intensive care units from inhaling anthrax. The 30 remaining Senators could not constitute a quorum, but the 70 could not be replaced until — or if — they died, leaving the chamber in long-term limbo.

House Republican leaders have tried to head off efforts to deal in a serious way with the continuity issue by passing a bill requiring expedited special elections. Let’s not dwell for the moment on the flaws of that bill; its greatest gap is that special elections, no matter how streamlined, simply cannot replace members who are incapacitated. House Judiciary Committee Chairman Jim Sensenbrenner (R-Wis.) has suggested expelling them, or else having each member vest an individual with power of attorney to remove them from office.

But ask yourself: if Members are injured by a violent terrorist attack and put in the hospital for six months, would you find it fair or appropriate to throw them out of office, destroying their careers, when they could in fact come back in a short while to resume their post? That’s one reason why emergency interim appointments — which would allow incapacitated members to return instantly once they declare their availability — is the only realistic way to ensure that Congress can operate after a catastrophe.

Unfortunately, that approach remains unacceptable to Sensenbrenner and House Rules Chairman David Dreier (Calif.), so Dreier is exploring yet another option: redefining a quorum to exclude individuals who are incapacitated. To his credit, Dreier held a hearing on this subject on April 29 that was civil and not partisan — a sharp contrast to the House Judiciary Committee’s embarrassingly partisan markup of a constitutional amendment on continuity offered by Rep. Brian Baird (D-Wash.).

Yet as was made clear by the compelling testimony of Charles Johnson, the estimable House Parliamentarian, defining a quorum downward is a perilous task. After re-reading his testimony, I believe it would clearly be unconstitutional. Some adherents say, in essence, “So what? We can do what we need to do in an emergency. Who will seriously challenge it?” But I find that kind of situational constitutionalism abhorrent.

Even more difficult will be finding a way to establish a rule that defines incapacitated Members that operates in a fair and nonpartisan fashion. Once Congress establishes the precedent that it can make a quorum what it wants to make a quorum, it could harness this new ability to redefine the membership in an infinitely pliable way. Any majority could write a rule to its advantage. The ranking Rules Democrat Martin Frost evoked the situation of Texas Democrats in his state’s re-redistricting embroglio last year. Imagine another vote like the one last year on Medicare prescription drug benefits. Speaker Dennis Hastert (Ill.) could have avoided a three-hour vote by picking a time when many opponents were away, defining them as incapacitated, and conducting the vote with a minority of members.

I understand the visceral feelings that many House Members have against appointments, but I believe that those feelings have wholly clouded their judgment. The contrast is not between an elected House and an appointed House. It is between a House that is able to function during a crisis and no House at all for months. Or between a representative House and a tiny group of Members declaring that they are the Congress, and taking actions that could include picking a Speaker who would act as president for four years. What is worrisome is that their clouded emotions could lead to a truly unfortunate rules change that leads the House down a slippery slope to an even greater degree of partisan manipulation.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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