It’s the issue that won’t go away, mainly because Congress has yet to squarely address it. The topic of legislative branch continuity following a catastrophe will be on the agenda today, as the House again takes up a bill to expedite special elections in the event that more than 100 Members are killed.
The House passed the measure overwhelmingly last year, but the Senate did not take it up. Authored by Judiciary Chairman Jim Sensenbrenner (R-Wis.), the legislation would require states to hold elections within 45 days after the Speaker declares more than 100 seats vacant due to “extraordinary circumstances.”
In a “Dear Colleague” letter circulating this week, Sensenbrenner and Rules Chairman David Dreier (R-Calif.) pointed out that the bill passed by more than a 3-1 margin last time around.
Yet opposition to Sensenbrenner’s approach, which is also the de facto position of the House GOP leadership, remains vocal, particularly for an issue so institutional and esoteric in nature.
The legislation is expected to once again pass the chamber easily, but not before Reps. Dana Rohrabacher (R-Calif.) and Brian Baird (D-Wash.) try to convince their colleagues that the House’s approach to the issue is misguided.
The two sent out a “Dear Colleague” letter of their own this week, outlining their opposition.
“We believe this time frame is both too long and too short,” Baird and Rohrabacher wrote. “It’s too long to reconstitute the House of Representatives when decisions need to be made immediately in a time of crisis, and too short to be democratic, since to meet the deadline, states would need to eliminate party primaries and have party bosses pick the candidates, and thus the Representatives.”
As passed last year, the bill would have eliminated the primary process in such circumstances, but the version introduced and marked up this year would not preclude states from conducting primaries if they wished to do so. Baird and Rohrabacher maintain, however, that the 45-day time limit would force the states to skip primaries, since it’s too short a time frame to conduct both a primary and a special election that would garner confidence.
In their “Dear Colleague,” Sensenbrenner and Dreier maintain that 10 states already hold special elections within 45 days.
Not mentioned in their letter, however, is that most of those states do so by eliminating the primary process.
Sensenbrenner and Dreier also point out that the nonpartisan Election Center, a national organization representing elections officials, “has shown that the expedited special elections can be conducted within a 45-day time frame.”
Doug Lewis, the Election Center’s executive director, testified before the House Administration Committee in September 2003 about the feasibility of various proposals to expedite elections. At that time, he said elections officials need at least 45 days — but likely closer to 60 days — to conduct an election with “the kinds of quality assurance, integrity and voter confidence” Americans have come to expect.
In an interview this week, Lewis noted that his remarks have been excerpted by both sides of the debate.
“What’s interesting here is both sides are quoting that same testimony,” Lewis said. “It’s whatever they lifted out of it. What I really said, I think, was that we really would prefer upwards of 60 days. On the other hand, we understood the situation of a true national emergency.”
Lewis added that the 45-day time frame originated with the understanding that it would start after the candidates were known. “They wanted the 45 to include determining the candidates,” he said.
“Do you slight democratic principles in order to have quick democracy?” Lewis asked. “That’s in a nutshell what you end up with.”
Control of the one hour of debate on the bill will be divided between Sensenbrenner and House Administration Chairman Bob Ney (R-Ohio), whose panel marked up the bill last month. Ney has said he believes that elections are always imperfect by their very nature and that the bill is the best balance between filling the House quickly and allowing universal participation.
House Administration ranking member Juanita Millender-McDonald (D-Calif.) will offer an amendment to push the time frame of special elections back to 60 days after the Speaker’s announcement.
Rep. Sheila Jackson Lee (D-Texas) will offer another amendment that increases the number of days from two to five that an aggrieved party has to file suit to challenge the expedited special elections. Her proposal would also allow citizens, and not just state governors, to file such suits.
In an interview, Lee said her amendment is an attempt to “recognize the magnitude of what we are doing at that time” and to allow citizens who feel they have been disenfranchised by the process to have a venue to seek relief.
She also said that while the debate will be brief, the questions raised by the continuity issue are of paramount importance to the House.
“It may take a moment to occur in the House, but it really is a large question,” she said, adding that she believes the question of Congressional continuity in the aftermath of a catastrophe ultimately requires some sort of constitutional amendment.
That is the argument made for the past several years by Baird and Rohrabacher, along with Reps. John Larson (D-Conn.) and Zoe Lofgren (D-Calif.).
“Anyone who believes that Sensenbrenner has solved the problem just doesn’t understand the problem, and that includes Mr. Sensenbrenner himself,” Baird said in an interview. “I am gravely concerned about whether these people are taking the problem seriously or the role of Congress seriously.”
Acknowledging strong philosophical opposition to their previous attempts to fix Congress’ constitutional dilemma, Rohrabacher and Baird have introduced a plan that would avoid the thorny issue of temporary lawmakers.
Instead, their amendment language would have candidates for the House pick three alternates to 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.
Sensenbrenner, Dreier and others have steadfastly maintained that only elected Representatives should serve in the people’s House. Rohrabacher’s plan, which Baird said he co-sponsored as an “act of goodwill and friendship,” attempts to be faithful to that sentiment while still accomplishing their overarching goal: Ensuring that every district is represented in the House, even in the immediate aftermath of a large-scale attack.