Torn from the pages of a thriller or disaster planning? ModCom takes on continuity of Congress

‘We still are woefully and dangerously unprepared,’ advocates say

Fire trucks lined Independence Avenue on Jan. 6, 2021, as the Capitol remained on lockdown after a mob attack. (Caroline Brehman/CQ Roll Call file photo)
Fire trucks lined Independence Avenue on Jan. 6, 2021, as the Capitol remained on lockdown after a mob attack. (Caroline Brehman/CQ Roll Call file photo)
Posted April 6, 2022 at 1:21pm

Seeing the explosive fireball after a passenger jet slammed into the side of the Pentagon on a pleasant September day in 2001 was the event that led Brian Baird to decades of questioning: What if that plane struck the Capitol? 

Planning for the worst can make some people squeamish, but Baird reasoned that members of Congress have a duty to think about their own deaths. 

“We were then, and we still are, woefully and dangerously unprepared for events that are quite easily imagined and, in fact, have actually taken place,” the former lawmaker said Wednesday in his prepared remarks in front of the House Select Committee on the Modernization of Congress. 

No one knows how the House would function if a mass casualty event caused the deaths of many members, Baird and other experts told the committee. The Democrat from Washington state retired from Congress in 2011 and has pleaded his case with renewed urgency over the past year.

It’s just one of many topics on the radar of the committee known as ModCom, tasked with proposing fixes for the legislative branch. But for Baird and others who revived the American Enterprise Institute’s Continuity of Government Commission after last year’s mob attack on the Capitol and as the coronavirus pandemic raged, the hearing this week was a chance to sound the alarm.

The commission is pushing for a new constitutional amendment that would require members to designate, confidentially, a list of replacements to serve in their stead if they are killed or incapacitated. The new House member would take over immediately, allowing the body to act quickly in a chaotic time, but would serve only until a special election was held.

Grim scenarios may sound like they are ripped from the pages of a political thriller, but Congress has come close to disaster more than once. 

A gunman fired on a Republican baseball practice in June 2017, gravely injuring then-House Majority Whip Steve Scalise. The next year a train carrying the GOP caucus to a retreat crashed into a truck, killing one person riding in the truck.

During the riot on Jan. 6, 2021, insurrectionists erected a gallows on the Capitol grounds and sought to find Democratic and Republican leaders not loyal to outgoing President Donald Trump.

“There’s no question that we are all vulnerable,” said former Rep. Mike Bishop, a Michigan Republican who serves on the AEI commission and was on the field during the baseball shooting. 

There is a clear line of presidential succession in case the commander and chief dies in office, but the way new leaders in Congress can be chosen is murkier. 

In the Senate, temporary appointments can be made to replace lawmakers thanks to the 17th Amendment. But the House is and has always been a body elected by the people.

A history of planning 

Movies and TV shows have explored other dystopian hypotheticals, like a designated survivor being the only member of government left alive after sheltering during a deadly State of the Union. 

Then there’s the idea of a “quorum trap,” where enough members of the House are alive but somehow incapacitated, preventing the chamber from having a majority of its “chosen, sworn, and living” members in attendance to operate.

The panel recounted that in 1950s and ’60s, the Senate passed constitutional amendments three times that would have called for vacancies to be filled with temporary members who would serve until states held special elections. Those never cleared the House.

The early days of the pandemic forced lawmakers to think on the fly to keep government running, with the House allowing members to hold remote hearings and vote by proxy. The system has been renewed through May 14 and was recently the topic of a House Rules hearing.   

Members of the bipartisan commission may have different political feelings about that particular system, but on Wednesday they called for longer-term planning and described how questions of legality and constitutionality have thwarted it. 

Pushing back was longtime congressional staffer and parliamentary rules expert George Rogers. While the commission says Congress is woefully unprepared and urges drastic action in the form of a constitutional amendment, Rogers’ prepared testimony pointed to steps the legislative branch has already taken, like a 2005 provision that calls for expedited special elections if there’s a catastrophe that kills more than 100 members.

He argued that the “quorum trap” had been addressed in previous congresses and noted that when Baird got a House vote on a constitutional amendment in 2004, it fell well short of the needed two-thirds majority. 

But advocates like A.B. Culvahouse, co-chair of the commission, said constitutional questions remain and rushing elections could undermine their integrity. Preparing for the worst means gaming out every scenario, he said. Even if the body could operate and a small subset of House lawmakers survive, that could throw off the balance of power. 

“The most dramatic case would be one where the president and vice president are killed and these 11 remaining members would elect a new speaker of the House who would assume the presidency in the line of succession,” he said.

Also testifying on Wednesday were former Cabinet secretary and congresswoman Donna Shalala, who serves as the other co-chair of the commission, and Doug Lewis, former executive director of the nonprofit Election Center. In the audience was Norm Ornstein, an outspoken advocate for continuity planning who first became involved with the AEI commission back in the early 2000s, when it was a joint effort with the Brookings Institution.  

Though time is running short for ModCom — the temporary committee is expected to disband at the end of the current term — Chairman Derek Kilmer reiterated the importance of talking through topics like continuity of Congress, especially after trying times.

No one wants to think about a future when they are not going to be a part of it, he said. But Congress has learned a lot about continuity in the past two years, just like after 9/11. People want to move on from the pandemic, but Congress should take advantage of the unique moment. 

“If we don’t, members will be sitting around 20 years from now trying to make sense of what happened and why,” the Washington Democrat said. “Just like a lot of us are doing today, with regard to 9/11 — that’s a disservice to the American people.”