If a series of life-threatening situations hasn’t motivated Congress to plan for the worst, what could?
Such scenarios are not abstract. A gunman opened fire at an early morning baseball practice in June 2017 targeting Republican lawmakers and severely injuring then-House Majority Whip Steve Scalise.
The next year, a train carrying much of the Senate GOP caucus to a retreat crashed into a truck. One person died, but it could have been worse. In January 2021, a mob of Donald Trump supporters set up a gallows on the Capitol grounds and violently overtook the Capitol, in search of Democratic leaders and Republicans they viewed as insufficiently loyal to the outgoing president.
Just a handful of votes separates the majority from the minority in the current Congress, but despite these real and life-threatening incidents, there has been little interest or action to protect the continuity of congressional operations if an attack or accident kills numerous members.
How quickly vacant seats are filled depends on each state’s policies, and in some cases, if there is a governor of one party and a safe seat held by the other, it can be the better part of a year. That has the potential to shift the balance of power in Congress and upend the will of voters, an unfortunate scenario after a tragic event.
Former Rep. Brian Baird sees a crisis on the horizon and is urging lawmakers to acknowledge their own mortality and build a plan for how to govern after a catastrophe and maintain legitimacy of the legislature.
The Washington Democrat, who served in the House from 1999 to 2011, led post-9/11 efforts in Congress to address continuity of all three branches of government, with a special focus on the House.
Baird is urging lawmakers weighing how to modernize Congress to take the issue of continuity seriously and to develop a bipartisan plan to preserve power of the legislative branch and maintain legitimacy of decisions made during a crisis. His suggestion is that members appoint someone who could act as a temporary successor.
He presented his case to the House Select Committee on the Modernization of Congress last month, but he has been hammering this issue for years, along with experts like Norman Ornstein at the American Enterprise Institute and Thomas Mann at the Brookings Institution.
The goal under Baird’s proposal is to ensure the legitimacy of congressional action after an emergency. But it could also be a form of self-preservation, since a bad actor or an insurgency couldn’t shift control of a chamber simply by eliminating a few members. In short, it could de-incentivize partisan political violence.
“Even a single untimely death, or worse, political assassination could swing the balance of power one way or another. This makes each and every one of you vulnerable personally, and the Congress susceptible as an institution. It is in your immediate individual interest and that of the Republic for Congress to solve this,” Baird told the committee on March 26.
He urged the panel to take a deep look at the policies in place for a crisis, including how long the House and Senate could be significantly hobbled while lengthy state-level processes for replacing deceased lawmakers play out.
He warned that trust in government, especially critical after a deadly crisis, could easily be compromised if the ideological makeup of Congress shifts significantly with the state-led replacements or if Congress is simply unable to act or respond because of some catastrophe.
Baird would like to see House and Senate rules changed and a corresponding constitutional amendment that would require and empower members of Congress to designate, confidentially, a rank-ordered list of qualified potential replacements in the event they are killed or incapacitated.
He envisions the list being held by a state’s secretary of state, who would contact designees and with an appointee from the list temporarily serving with full privileges and responsibilities.
“Imagine the power of that image, of that reality for our own citizens and for the free world. The very day after the worst event in American history, the Congress resumes to full function and Presidential and Vice Presidential successors are selected,” Baird wrote to the modernization panel.
But Baird said he is not seeking to undermine the special election process, specifying that those should be held “as soon as practical and safe” after a vacancy occurs.
He points to crucial hours and days after a hypothetical attack that kills a sizable number of members, in which Congress may need to take swift action or provide a check to the executive branch, as essential time for Congress to be functional.
“By providing for immediate replacements with individuals chosen by the elected Representative of Senator, it would not be possible to change the political balance through either targeted attacks or unfortunate natural events,” Baird wrote to the panel. “That, in a way, is somewhat of an insurance policy that helps protect the lives of current members and preserve the integrity and continuity of the institution overall.”
Modernization Committee Chairman Derek Kilmer, D-Wash., asked Baird about the roots of the long-standing inaction on issues of reconstitution and succession, even after massive threats like the 9/11 attacks.
“I’m trying to figure out what the holdup is. ... There seems to be this incredible inertia against engaging on this issue, and candidly I don’t know that I entirely get it,” said Kilmer.
Baird said that in the past two decades, lawmakers have refused to acknowledge reality.
“Mr. Chairman, I’ve never worked on anything more important in my entire life with less success, and that’s partly because of denial. People don’t want to believe they can die,” said Baird.
Extensive reports were produced by a Continuity of Government Commission in the years after 9/11 but were met with inaction, indifference or hostility.
But some lawmakers, including some who remain in Congress, did take notice. Majority Leader Steny H. Hoyer, D-Md., then the ranking member on the House Administration Committee, as well as Reps. Steve Chabot, R-Ohio, and Jerrold Nadler, D-N.Y., held hearings in the Judiciary Committee on continuity plans and reconstitution after an attack. Rep. Zoe Lofgren, D-Calif., who now chairs the House Administration panel, filed a bill in 2002 to amend the Constitution with a new continuity framework. But urgency seemingly subsided, and little progress was made.
Rep. Emanuel Cleaver II, D-Mo., said he heard Baird’s call and hopes the committee and other relevant groups inside and outside of the House will take swift action.
“I do think that we need to do it. I think we need to do it rather quickly,” said Cleaver.
Cleaver doesn’t have any illusions of immunity from harm, reminding his colleagues that a man was indicted in March for threatening to hang both Cleaver and Rep. Steve Cohen, D-Tenn., and in 2014 a man threw Molotov cocktails through the windows of one of his district offices.
A dozen recommendations on continuity of Congress were among the 97 advanced in the last session, and most were quickly implemented as the pandemic forced offices into remote work and accelerated moves toward digitization.
Baird said the mortal threat of the COVID-19 pandemic and the deadly attack on the Capitol on Jan. 6 both highlight the need for procedures to be established before another crisis or tragedy strikes. The modest steps taken in the wake of the 9/11 terrorist attacks and anthrax attacks on Capitol Hill, like the rule to allow for a provisional or “catastrophic quorum,” simply aren’t enough, according to Baird.
He compared Congress taking action to safeguard continuity to the worst-case scenario plan that families have and hope they never have to use.
“It’s like being a parent and never having thought about what if something happens to you. Somebody is going to have to take care of your kids; that’s just irresponsible,” he said.