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A Bipartisan House Spoke Clearly on Continuity Amendment

To paraphrase an old legal saw, “If you can’t argue the facts, argue procedure. If you can’t argue procedure, argue the facts. And if you can’t argue either, pound on the table.” Norman Ornstein’s column, “GOPs’ Approach to Continuity: Not Just Unfortunate. Stupid” (June 9), sends up a huge smokescreen of procedural arguments to obscure one simple fact: The House, by an overwhelming bipartisan margin of 63 to 353, rejected a constitutional amendment sponsored by Rep. Brian Baird (D-Wash.) to provide for appointed House Members if large numbers are killed or incapacitated in a catastrophic event.

To read Ornstein’s column, one is led to believe that if only the ground rules for consideration of the amendment had been different, the results would have been different. Those nasty Republicans, he contends, rigged the game with a closed rule that allowed no amendments and only 90 minutes of debate. However, even Ornstein concedes that none of the three alternative approaches introduced by other Members “was expected to gather the two-thirds vote necessary to pass the House.” Presumably, under this argument, it would have been good to have more debate and more votes on more alternatives to arrive at the same result: House Members do not want to change their unique status as elected representatives, even for the brief period it would take to produce replacements in special elections.

However, the procedural charges made by Ornstein bear further examination. Yes, the rule was indeed a closed rule that barred all amendments during the normal amendment process. And yes, it would have been more fair to allow for separate votes on the three alternative proposals introduced by Reps. Zoe Lofgren (D-Calif.), John Larson (D-Conn.) and Dana Rohrabacher (R-Calif.). But, just how abused was the minority in this procedure? And just how partisan was the process overall?

To answer these questions, one needs to go back to the consideration of the amendment by the House Judiciary Committee. Ornstein charges that in the Judiciary Committee markup, “There was no debate, and Chairman [James] Sensenbrenner [(R-Wis.)] refused to discuss alternatives, including one by Lofgren.”

A review of the committee markup transcript on May 5, 2004, which is included in full in the committee’s report on the amendment, reveals that there was indeed an extended debate, running some 30 pages. Rep. Jerrold Nadler (D-N.Y.) offered an amendment to the Baird amendment which was debated at some length and then withdrawn. Rep. Zoe Lofgren offered two motions to postpone consideration, but made no attempt to offer her own constitutional amendment as a substitute (which should explain why Chairman Sensenbrenner refused to discuss her alternative). In short, there was ample opportunity to consider alternative measures, but none was pressed to a vote by Judiciary Democrats.

Ornstein writes that Sensenbrenner “even refused to let Brian Baird speak on his amendment’s behalf — the kind of common courtesy that used to be, well, common in the House.” As one who worked in the House for 28 years, I have never witnessed an instance in which a non-committee member was allowed to speak on behalf of his bill in the middle of a markup. It’s just not done as matter or rule, precedent or courtesy.

Moreover, the dissenting views of committee Democrats that were filed with the report focused solely on the lack of sufficient hearings on amendment alternatives. They did not take a position on the need for a constitutional amendment in the first place — let alone on any of the alternatives.

In the House Rules Committee, Chairman Sensenbrenner and Reps. Rohrabacher, Nadler and Baird all testified on the rule. Rules Democrats could easily have offered an open rule or amendments to make additional substitutes in order. But none was offered. The same goes for the House floor. If the Democrats felt that there was a gross procedural abuse being perpetrated by the closed rule, they could have urged defeat of the previous question on the rule to further open up the bill to other amendments.

But while they did call for a roll call vote on the previous question, there was no announced plan — as is usually the case — of what they would have offered had it been defeated. The message of the Democratic rule manager throughout the debate was instead to defeat the rule.

Finally, there was another procedural opportunity to offer an alternative amendment on the motion to recommit the constitutional amendment with instructions. However, instead of offering an alternative amendment, Rep. Lofgren offered a motion to recommit the measure to the Judiciary Committee with instructions to hold hearings. Since such a motion is not binding, its adoption would have consigned the Baird amendment to legislative purgatory.

If that last action does not speak volumes about the lack of enthusiasm by most Members to vote on any amendment, then the final passage vote does. The measure was defeated on a crushing bipartisan wave of opposition, with only four Republicans and 59 Democrats voting for the constitutional amendment, and 133 Democrats and 219 Republicans voting against.

Those who try to portray this whole exercise as some kind of a partisan majority ploy to stifle legitimate minority alternatives completely ignore the procedural opportunities the Democrats had to make their case and offer their alternatives but refused to do. By the same token, Ornstein’s column throws up a barrage of misleading procedural decoys to divert attention from the central reality that amendment proponents could not convince a majority (let alone two-thirds) of their colleagues on the merits of their proposition. What we are left with is a lot of table-pounding.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.