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Congressional Succession Debate Back On

Reps. Brian Baird (D-Wash.) and Dana Rohrabacher (R-Calif.) rekindled the debate today over how to keep Congress running after a catastrophic attack, with both Members introducing constitutional amendments that would provide immediate replacements for dead or incapacitated lawmakers.

“To deny that terrorists would like to kill a large number of Members of Congress is foolhardy and to believe they cannot do it is unrealistic and to not take action to deal with that is irresponsible,” Baird said. “Unfortunately, we right now fall into all those categories.”

The two lawmakers have pushed for a solution for years, unsuccessfully introducing bills and amendments to fix what they see as a major hole in Congress’ planning. Instead of laws that now call for expedited elections, Baird and Rohrabacher want Members to have backups who would serve as immediate replacements for Members killed or incapacitated in an attack.

“We need to have some sort of process if we were to lose a large number of Members of Congress for some reason,” said Rick Dykema, Rohrabacher’s chief of staff. “It could be a terrorist attack, it could be disease, it could be a number of reasons.”

Both Baird and Rohrabacher object to the current practice of state governors appointing replacements to Senate vacancies, with Baird characterizing the practice as having an “abuse potential you can drive a truck through.” They’re even more outraged over the lack of plans to replace Representatives, especially in the instance of a large attack. So both have introduced constitutional amendments to fix the problem, although they differ substantially in some instances.

Rohrabacher’s amendment would require Representatives and Senators to run with an alternate candidate, who would serve as an immediate and temporary replacement for a dead, incapacitated or expelled Member.

This replacement would not just be for massive attacks but also for instances when a single Member cannot serve. The current practice of waiting for a special election or for an incapacitated Member to recuperate leaves some states and districts without fair representation, Dykema said. He used the example of Sen. Tim Johnson (D), whose slow recovery from a brain aneurysm this year left South Dakota temporarily without one Senator and threatened to change the makeup of the Senate if the state’s Republican governor picked a replacement.

“We believe the continuity of representation is as important as the continuity of Congress,” Dykema said. “We’re talking about things that happen regularly that cause a state or district to lose representation.”

Baird’s bill, however, is specifically tailored to a catastrophic attack. It would only kick in if a “significant number” of Members died, were incapacitated or disappeared after an attack. At that point, an alternate previously chosen by each Member would take over. Unlike Rohrabacher’s bill, those alternates would not be voter-approved; instead, they would be on a list of three, in order of preference, that Members submit when taking office. That way, Baird said, candidates won’t have to run with an alternate who might change the dynamics of a campaign.

Furthermore, unlike Rohrabacher’s amendment, Baird’s bill is flexible, allowing Congress to decide what constitutes a catastrophe. He imagines situations where an entire state’s delegation are attacked at an official event or where a large number of Members from one party are killed at a convention.

“Leaving some flexibility allows the Congress to use some discretion to say something unique and extraordinary is happening,” Baird said, adding that any threat of abuse will be somewhat checked by the fact that the alternates most likely will be of the same political party as the Member. “People won’t like the ambiguity, but I think it’s actually sound reasoning.”

It’s unclear whether either of these bills will move forward. In the past, Democratic leadership has not made it a priority, although Majority Leader Steny Hoyer (D-Md.) said in a statement Wednesday that he appreciated the lawmakers’ efforts on such a serious issue. However, a bill introduced earlier this year by Rep. Brad Sherman (D-Calif.) that addressed similar issues for the presidential line of succession has sat untouched in the House Judiciary Committee, despite Sherman’s membership on the panel. And some continuity proponents simply have given up: Sen. John Cornyn (R-Texas) once introduced a constitutional amendment to solve the problem, but now his spokesman says that it’s the Democratic leadership’s responsibility to pick up the issue.

Sherman said he is optimistic his bill will move forward but admitted that it’s hard to get support for continuity bills.

“There’s a feeling of ‘Oh gee, that’s important. Therefore, we’re scared to do anything,’” he said. “The fact is inaction is as active as action.”

Dykema said Rohrabacher just wants to start the conversation, both about possible attacks and about how Members currently are replaced.

“We need to solve a problem, and in our case we think we need to solve a couple of problems,” he said. “Let’s get the debate going. Let’s get proposals going.”

Since Sept. 11, 2001, Congress has passed a few provisions to ensure continuity after an attack, including one that requires states to hold special elections in 49 days if there are more than 100 vacancies in the House. But several election experts have called the plan flawed, arguing that states cannot hold elections so quickly and that such an expedited approach could lead to unfair or nonexistent primaries.

Baird said his staff found that only two states have prepared for this requirement — proof, he says, of the provision’s impracticality. Members simply have to pass something more realistic than the status quo, he said, rather than ignoring the problem altogether.

“We are six years post-Sept. 11, and we still do not have a constitutionally valid way of ensuring the continuity of the government or check and balances,” he said. “I would hope that we could learn from that experience and we will not wait until suddenly it’s too late to make a decision.”

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