The House Republican leadership is once again promising to move quickly on a rules change — derided as unconstitutional by many scholars and some Members — to allow the chamber to conduct business with only a fraction of a normal quorum if a catastrophe were to incapacitate large numbers of lawmakers.
Three years after the terrorist attacks of Sept. 11, 2001, and five months after the Rules Committee held its first and only hearing on the proposed change, the “provisional quorum” rule has yet to make it out of the panel and onto the floor.
Rules Chairman David Dreier (R-Calif.), acknowledged the difficulty of the issue last week and refused to lay out a timetable for consideration. He also declined to indicate whether the measure would be pushed off until the 109th Congress.
“This is obviously a priority,” Dreier said. “We’d like to figure out a way to deal with this, because it’s a very serious issue.”
In a special-order speech last Wednesday, Dreier expressed his desire to “bring these matters before the full House very soon. It is vitally important that the House have in place a procedure to deal with mass incapacitation before we complete our business for the year and recess, before the national elections and before the counting of electoral ballots.”
But House leaders have employed such rhetoric since the spring and made plans to put the rule change on the schedule several times since, only to take it off the agenda again.
It’s not entirely clear what has held up the issue. Ted Van Der Meid, counsel to Speaker Dennis Hastert (R-Ill.), said Democrats have asked the leadership to “go slow,” but he added that “it’s our intention to move forward before the election.”
For their part, Democrats, including Rules ranking member Martin Frost (D-Texas) and Rep. Jim McGovern (D-Mass.), ranking member of the Rules subcommittee on technology and the House, concede that the proposal may be constitutional but have expressed strong reticence about its specifics and the process though which it was drafted.
As it now stands, 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 current rules dictate that incapacitated Members would still be included in the quorum calculations, meaning that if 200 Members survived an attack but were unable to make it to the chamber, the House could be paralyzed.
The existing quorum standard was set by Speaker Joe Cannon (R-Ill.) in 1906 but was 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. Dreier’s proposed rules change would dramatically depart from Cannon’s “chosen, sworn and living” standard, however, and allow the Speaker to effectively disqualify from the body Members who are incapacitated, at least temporarily.
Under the GOP’s proposed rules change, the Speaker could unilaterally lower the number of Members required for the House to conduct business to a number far below the current threshold of 218. After a 72-hour quorum call to compel the attendance of absent Members and otherwise account for those missing, the Speaker would present to the chamber an unappealable “catastrophic quorum failure report” stating that a calamity had occurred that rendered large numbers of Members incapacitated and thus prevented the House from doing business.
After another 24-hour quorum call, the number of Members required to be present to proceed would be automatically revised downward to a majority of those able to report. That “provisional quorum” would remain in effect until enough Members had appeared to return to a quorum of the whole House.
In his floor speech, Dreier explained that the “potential rule change uses the ability or inability of Members to show up and participate as a measure of who exists.” That method gets around what all concerned have deemed an extraordinarily difficult dilemma: how to determine incapacitation. At the April hearing, John Eisold, the Attending Physician, said that was a “subjective judgment” that would have to be made by “nonmedical people but based on meaningful and accurate medical input.”
In a statement in the Congressional Record, Frost said that this dilemma makes unworkable the GOP rule change as it is currently written because the draft version would require the Speaker only to consult with — not seek concurrence from — the Minority and Majority Leader before presenting the catastrophic failure report to the House. (This mention of the Minority and Majority Leaders at all is a revision from earlier drafts, which had the Speaker consulting only with House officers.)
“How do we prevent the process from becoming one where Members are declared incapacitated based on their party rather than their medical condition?” Frost asked. “For example, what credibility would the Speaker’s decision have to declare a Member of his or her own party fit to serve in the House, but to declare a Member of the other party with similar symptoms incapacitated?
“I believe the only way to conduct this process in a manner that promotes legitimacy is to require that not just the Speaker but the leaders of both parties in the House agree that a certain Member is or is not able to report for work,” he added.
That was the recommendation of former Clinton administration Acting Solicitor General Walter Dellinger, who testified at the April hearing. Although he asserted that the House is completely within its constitutional authority to drastically reduce its quorum through a rules change, he strongly urged that it “take effect only upon bipartisan recognition” of extraordinary circumstances.
In his floor speech, Dreier said the rules should not be made “‘partisan’ in an attempt to appear ‘bipartisan.’” He suggested that requiring the Speaker to seek consent of the Majority and Minority Leaders would diminish his or her role as an officer of the House because the latter two are party leaders and don’t have the ministerial function of the Speaker. He also emphasized that the Constitution allows for a majority of those present to vote at any time to adjourn, which would function as a check on the Speaker’s power by setting the clock on the quorum calls back to zero.
Even with concurrence of the Majority and Minority Leaders, however, experts are nearly unanimous in questioning the propriety of Dreier’s proposal. With the exception of Dellinger, who was the only constitutional scholar to testify before the Rules panel, all but one of a half-dozen experts contacted by Roll Call was highly skeptical, and most said the proposed rules change was flatly unconstitutional.
In addition, Sen. John Cornyn (R-Texas), who has proposed a constitutional amendment to address both chambers’ continuity problems in a disaster, sought and received opinions from an array of scholars of varying ideologies. They, too, questioned the House’s efforts in no uncertain terms.
“No constitutional mechanism exists, and no procedure can be created unilaterally by the House without an amendment, to empower the Speaker simply to ignore a chosen, sworn and living Member of the House and to conduct House business,” wrote Howard Wasserman, an assistant professor at Florida International University who has testified before Congress. “The Speaker’s procedural power to adjust the whole number of the House when a Member dies, resigns or is otherwise removed — when a seat becomes vacant — does not empower the Speaker to adjust the whole number if seats have not, in fact, been rendered vacant.”
Dreier has maintained repeatedly that the framers designed the Constitution to allow for its preservation during unforeseen circumstances and that his rules change simply embodies Alexander Hamilton’s assertion that “every government ought to contain in itself the means of its own preservation.”
But constitutional scholars have almost universally criticized that thinking as a premise for a provisional quorum, especially given that circumstances threatening Congressional continuity are at least somewhat foreseeable and that the Constitution could be amended to specifically give the House and the Senate authority to proceed absent a normal quorum in extraordinary circumstances.
“While compelling justifications may sometimes salvage the constitutionality of otherwise unconstitutional acts, I do not believe they can save the House proposal. The problem is that the proposal seeks to do nothing less than to re-define the requisite conditions for lawmaking,” wrote Michael Gerhardt, a law professor at the College of William & Mary. “‘Bipartisan recognition’ is a noble goal, but I am unaware of any area of constitutional law in which it is constitutionally required or allowed to save an otherwise unconstitutional act.”