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Congress Continues to Neglect Continuity

This week, as the nation prepares to observe the 10th anniversary of 9/11, Roll Call looks back at how Capitol Hill responded to the attacks and how that day’s events changed — and didn’t change — life in Washington.

Just like the day almost 48 years ago when President John F. Kennedy was assassinated, I remember vividly where I was and what I did 10 years ago on Sept. 11, 2001.

I was headed to Dulles International Airport that morning to catch a flight to Norfolk, Va., for a meeting of government ethics officers. It was a perfectly beautiful day, and the drive out was almost serene. When I arrived to check in, the counters were abuzz with the news that a plane had hit the World Trade Center, but the early reports suggested it was a small private plane that had gone astray.

I made my way to the gate and then onto the jetway, when we were called back after the news arrived that a second plane had hit the towers, making it clear this was no accident.

I retrieved my car and made my way home, and like so many others, I spent the day glued to the television set. When I heard the news reports about United Airlines Flight 93 crashing in rural Pennsylvania, I had two spontaneous thoughts: first, that the plane had been headed for the Capitol, and second, that if it had hit during morning business on a beautiful day with hundreds of Members of Congress inside and outside the building, it could have killed and incapacitated enough lawmakers to force the House below a constitutional quorum — meaning no House, and no Congress, for a long time. That, in turn, would mean a government under attack run by some equivalent of martial law.

Soon thereafter, I wrote a column in Roll Call noting that neither the framers nor subsequent political leaders had built in to the constitutional framework any plans to reconstitute Congress in the event of a catastrophe of this sort, a problem particularly acute for the House, where vacancies can be filled only by special elections.

It takes four months, on average, to fill a House vacancy — a time that would likely be lengthened if we were talking about filling not one but hundreds of seats, under conditions of chaos and maximum stress.

I called for Congressional leaders to at least create a commission to study the problem and potential solutions.

My immediate reaction on 9/11 to the Flight 93 crash was matched by then-Rep. Brian Baird (D-Wash.). He contacted me when my column was published, and we began a series of brainstorming meetings. Our initial focus on the House soon expanded to the Senate, driven in part by the anthrax attacks.

Senate vacancies can, in most cases, be filled by executive appointment — but that does not apply to incapacitation. If the anthrax attack had indeed been a terrorist plot, with weapons-grade anthrax inserted into the Senate’s ventilation system, 60 or more Senators might have been laid up with inhalation anthrax, meaning no Senate for an indefinite period.

Soon after, I was approached by Lloyd Cutler, the late White House counsel and superlawyer; with him, we helped create a blue ribbon independent commission, co-chaired by Cutler and former Sen. Alan Simpson (R-Wyo.).

After months of hearings and intensive study of the issues and potential solutions for the continuity of all three branches, we issued a report with detailed recommendations on Congress, followed by one on presidential succession, along with a series of recommendations for the continuity of the Supreme Court.

Dealing meaningfully with the continuity of Congress, we concluded, would require a constitutional amendment, narrowly drawn to be triggered only in the event of a catastrophe, while dealing with presidential succession and the Supreme Court would require only statutory change.

I did not think anything significant would happen in the first year or two after 9/11. Constitutional amendments, appropriately, are very hard to move in Congress, and statutes to reform or create succession plans are not generally a high priority. But I would not have predicted that 10 years later we would be stuck at square one.

In that first year, after months of pressure, the House Judiciary Subcommittee on the Constitution held one hearing on the issue — at which the chairman made clear there would be no action and no more hearings.

Then-Speaker Dennis Hastert (R-Ill.) created a working group, co-chaired admirably by then-Reps. Chris Cox (R-Calif.) and Martin Frost (D-Texas), which did diligent work and issued a report with some recommendations, but it was clear from discussions with the Republicans on the panel that the Speaker had given them marching orders, and they were not to recommend anything serious.

The Senate Judiciary subpanel on the Constitution, thanks to the leadership of Sen. John Cornyn (R-Texas), actually reported out a proposed constitutional amendment to allow emergency interim appointments to the House for vacancies caused by a massive catastrophe and to both bodies for temporary replacements for incapacitation. But under pressure from House Republican leaders, then-Judiciary Chairman Orrin Hatch (R-Utah) made sure nothing more happened.

It is dismaying that 10 years later, the only plans we have in place to deal with a devastating terrorist attack on Congress are unrealistic, unconstitutional and/or counterproductive.

At the instigation of then-House Judiciary Chairman Jim Sensenbrenner (R-Wis.) and Rules Chairman David Dreier (R-Calif.), we have a law that requires expedited elections for the House that are virtually impossible to carry out and would still leave the chamber inoperable for a critical 45 days after a devastating attack. And we have a House rule that directly violates the clear constitutional language on quorum requirements for the House.

Thanks to them, we could well face a situation where a chamber with a handful of Members would try to operate as a House making decisions about war and peace, civil liberties and other crucial areas, acting in defiance of the Constitution and with no legitimate representation for most of the country — followed by an “elected” House with a majority of Members chosen with no primaries or reasonable candidate selection process and elected after campaigns slapped together during a time of maximum national crisis, with most of them then being incumbents able to serve for long periods of time. Shocking and shameful.

As for the Senate? Nothing at all.

The need for both chambers to create an insurance plan for Congress in the event of catastrophe — to have temporary replacements for dead and incapacitated Members until there can be real and representative elections or the disabled can return to service — remains acute and unfulfilled.

All of these failures, I should add, are thoroughly bipartisan. Republicans in the House have done more damage — but Democrats in the House have done nothing.

When they recaptured the majority in 2006, the Democrats under then-Speaker Nancy Pelosi (Calif.) took not a single step to grapple with Congressional continuity or any of these other problems. To their great discredit, they did not even erase the unconstitutional rule on quorums.

Republicans in the Senate, thanks to Cornyn, did grapple with the Congressional continuity issue, but the party leaders took no interest in it, and nothing happened.

When Democrats recaptured the Senate — nothing. Not a hearing, not any action on any of the branches. There was brief interest from Sen. Dianne Feinstein (D-Calif.) in a plan to deal with continuity in the Supreme Court, but it went nowhere.

Why? Human nature is probably the major culprit here. No one wants to confront issues involving their own demise, whether it is writing a will or crafting a continuity plan. The process can bring out difficult and unresolved issues that people would rather leave unresolved.

In some ways, this was history repeating itself; despite several near misses from the 1860s to the 1880s, with times when there was no one in line for the presidency, it took more than one assassination to bring about a revision in presidential succession in 1886.

Second, the very lack of another attack after 9/11 drove a greater complacency — the more time passes without another catastrophe, the less the internal drive to act.

Third, there were not enough champions inside Congress. Issues that do not demand immediate resolution require passionate sponsors inside who keep pounding away at the issue, bringing it to public attention and hounding their leaders. Baird, Cornyn, Cox, Frost and Rep. Dana Rohrabacher (R-Calif.) for different periods led the charge on Congressional continuity, as did Rep. Brad Sherman (D-Calif.) on presidential succession, but there was not enough firepower.

I fear that it will take another horrible attack to get Congress and other political figures to act, much as it took the assassination of President James Garfield in the 1880s. What a shame, and how unnecessary.

Norman Ornstein is a resident fellow at the American Enterprise Institute.

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