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New Bill on Continuity Proposed

Acknowledging strong philosophical opposition to his previous attempt to fix Congress’ constitutional danger if a catastrophe were to strike at the Capitol, Rep. Dana Rohrabacher (R-Calif.) plans to introduce a different proposal that would allow every district continuity in representation without employing temporary lawmakers.

Rohrabacher’s amendment language would have candidates for the House pick three alternates who would appear on the ballot under the candidate as a ticket, so that all four would be duly chosen by the people of that district to serve as their Representative. If the lawmaker was temporarily incapacitated or killed, the alternates would step in, in ranked order, until a special election could be held.

Rohrabacher’s chief of staff, Rick Dykema, said that during the debate over the previous proposal, “there was so much stress placed on everyone being elected.” As a result, he said, the California Republican decided to offer an amendment that was faithful to that sentiment while still accomplishing his overarching goal — namely, ensuring that every district is represented in the House even in the immediate aftermath of a large-scale attack.

The proposal, which Rohrabacher plans to introduce early this session, would also provide for an additional two vice presidents, for a total of three, to be elected with the president, so that if the president and vice president were killed or incapacitated there would be a clear line of succession in place. All three would serve concurrently with the title of vice president, and all would vault, in ranked order, to the top of the presidential succession list.

Last year the House passed — but the Senate refused to take up — legislation authored by Judiciary Chairman Jim Sensenbrenner (R-Wis.) that would require states to hold elections within 45 days of an event that killed more than 100 House Members. A combination of opposition and indifference kept that measure from coming to a vote in the Senate, with some Senators opposing it because they believed it incompletely tackled the complex problem of Congressional continuity and thus should not be passed as a standalone measure.

Critics of Sensenbrenner’s legislation — some of whom were among the 306 House Members who voted for it — asserted that it did not address what would happen if many Members of both chambers were incapacitated. Many experts deem that scenario more likely in the event of a terrorist attack than large-scale deaths, and it is far more complicated to deal with, since the Constitution does not discuss incapacitation of either House Members or Senators.

The previous legislation’s skeptics also pointed out that Sensenbrenner’s bill did not account for what would happen to the House in the 45 days until elections were supposed to be held. And many elections experts don’t believe credible elections could be held in that time frame.

At the beginning of the 108th Congress, the House instituted a new rule as part of the majority’s rules package, allowing the Speaker or his designee to revise the quorum requirement downward to account for deceased House Members. In the House rules package approved last month, the Republican leadership inserted a highly controversial provision that allows the Speaker to revise the quorum downward — conceivably to as few as a handful of lawmakers — if he determines that a disaster has incapacitated large numbers of Members. Many constitutional scholars deem both rules unconstitutional but find the most recent change especially egregious.

Rohrabacher and others, including Reps. Brian Baird (D-Wash.), John Larson (D-Conn.) and Zoe Lofgren (D-Calif.) and Sen. John Cornyn (R-Texas), have tried to avoid what they believe would be constitutional uncertainty if the House acted with only a tiny fraction of its total membership and thus left most districts without representation in a time of crisis.

Except for Cornyn’s amendment resolution — which does not address the issue of temporary lawmakers and leaves the decision on how to replace deceased House Members and incapacitated lawmakers from both chambers to individual states — all of the other proposed constitutional amendments, including Rohrabacher’s previous attempt, proposed some sort of temporary House Members serve until special elections could be held — an idea anathema to the House leadership and many rank-and-file House Members.

Rohrabacher’s new plan is an attempt to assuage those concerns. On its face, it would not seem to offend the principle articulated by Sensenbrenner and others that no unelected Members serve in the House. Still, the resolution faces the likely prospect of wide indifference among the rank and file and a dearth of support from either chamber’s leadership.

A spokesman for Sensenbrenner said the chairman’s goal continues to be getting his bill to expedite special elections passed. “I think it was really terrible that the Senate refused to pass it last year and showed a lack of comity with the House,” the spokesman, Jeff Lungren, said.

On the Senate side, a shuffle in Judiciary subcommittees has left Cornyn without the Constitution subcommittee perch to shepherd continuity issues. Last year he held a spate of hearings on both presidential and legislative branch continuity. He now chairs the subcommittee on immigration, border security and citizenship, but a spokesman indicated that he intends to keep pushing continuity issues this Congress. Sen. Sam Brownback (R-Kan.) now wields the Constitution subcommittee gavel.

Cornyn intends to reintroduce his amendment proposal this session, according to his spokesman, Don Stewart. It will reflect a change suggested by Sen. Russ Feingold (D-Wis.) at a hearing last year to require a supermajority to pass the authorizing language necessary to implement the amendment, if it is ratified. Feingold’s support was crucial for Cornyn’s legislative momentum because he has previously maintained a stance of near-universal opposition to constitutional amendments, even for causes he championed.

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