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On Continuity, Both Parties Need to Cooperate

The debate over how Congress should reconstitute itself in the wake of a devastating terrorist attack has evolved into a partisan melee with experts, staffers and elected officials talking past one another. The same arguments are repeated over and over again, with interested parties now seeming to treat the issue as a law school exercise that rewards the most arcane legal reasoning.

It’s true that when tinkering with the Constitution and interpreting the meaning of the Founders, we must pay attention to the details. But along the way, we should not lose sight of the larger issues that surround the preservation of Congress and its continuity. The current debate has given scant attention to several important points — points that may have the power to move deliberations beyond the impasse over whether a constitutional amendment is needed or whether appointments should take precedence over special elections.

Virtually everyone agrees that the first priority in the wake of a disaster is to make sure the federal government continues to function. The oft-cited reason for quickly reconstituting the House is to preserve its representative capacity. While this rationale is essential, an equally important reason is to preserve legislative power vis-à-vis an emboldened executive.

At a recent Rules Committee hearing on continuity, one Member wondered if a House of Representatives with only a few able Members should cease to function and cede power to the president until it was able to regain membership. Although it is appropriate to ask this question, the answer is a resounding “no.”

If Congress cannot function properly, unilateral executive actions will serve as the operating mechanism of the federal government. For several months in 1861, Abraham Lincoln prosecuted the Civil War unilaterally, until Congress reconvened in early July. The suspension of habeas corpus, the naval blockade, and the enlargement of the Army and Navy undertaken by Lincoln are conventionally revered in American history as acts of necessity and preservation. But in the Second Treatise of Government (Chapter 8, Section 111), John Locke warned against the expansion of the executive “prerogative” power.

Locke conceded that “virtuous princes” who expand executive power in a time of crisis perform a noble service, but added that those princes who come to power in the aftermath will always be tempted to abuse the precedents set before them. We may recall that Richard Nixon invoked Lincoln’s expansive use of executive power when he refused to turn over the Watergate tapes. Locke’s so-called “virtuous princes” are not the problem; rather, it is those who follow in their wake.

In short, it would be a travesty if the legislative branch ceased to operate with legitimacy at a time of crisis in the United States. Emergency executive actions that Congress or the Supreme Court subsequently recognize as legally permissible ultimately enlarge the discretionary power of the executive branch. Congress’s effectiveness as an bulwark against the executive should encourage lawmakers to design logistical procedures that insure the immediate reconstitution of the House and Senate if mass vacancies or incapacitations occur.

The Constitution requires that all members be selected by election, following the Founders’ desires to keep the House close to the people. Yet while the electoral integrity of the House is significant, so too is the fact that the Founders designed the House to provide proportionate and equal representation to all citizens.

Read in its entirety, the Federalist Papers aggressively promote the republican nature of American government, while defending its democratic allowances cautiously. Strictly speaking, the United States is a “democratic republic.” It is no coincidence that “democratic” is the adjective in this formulation. If only a few Members were left to represent the whole nation for a period of time before special elections could be held, would that arrangement accurately reflect the Founders’ republican vision? Democracy and republicanism are essential to American governance, and the solution to continuity should span both ideals.

The relevance of both democratic and republican norms suggests that a two-part approach might provide the most comprehensive resolution to the problem of congressional continuity. The Continuity in Representation Act of 2004, sponsored by Rep. Jim Sensenbrenner (R-Wis.), ensures the democratic character of the House by mandating that special elections be held within 45 days of a catastrophe. While that time period may prove too short to conduct several hundred special elections after a massive attack, the underlying electoral motivation behind the bill is sound.

By itself, however, the measure is not a comprehensive answer. To preserve the representative function of the House, an amendment allowing the temporary appointment of members must be enacted. In the context of partisan rancor, these two approaches to continuity have been presented as mutually exclusive measures. But instead, a constitutional amendment should be considered compatible with Sensenbrenner’s bill, together producing a federal law that mandates timely special elections as well as a constitutional amendment that provides for temporary House appointments. Only this can preserve the Founders’ democratic and republican ideals.

It is time to move beyond the repetitive rhetoric and the impenetrable inflexibility of rival solutions. Each side has solved part of the problem; only a blend of approaches can settle the looming question of continuity. Adherence to the Founders’ ideals depends on a bipartisan approach. Even more important, the balanced preservation of our nation’s governing system in a time of crisis necessitates it.

Colleen Shogan is a professor of government and politics at George Mason University.

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