Brian Baird didn’t see the plane hit the Pentagon, but from the window of his seventh-floor office in the Longworth House Office Building, he could see the smoke in the distance.
“I had this surreal moment of running, thinking, ‘Are we about to die?’ And then thinking, what happens constitutionally if we do die?” Baird recalled recently.
On that day in 2001, the Democrat and his staff fanned out across the building, urging others to evacuate. In the end, the Capitol was spared on 9/11, but the question haunted Baird for the rest of his time in Congress and continues to nag at him today.
According to the Constitution, only directly elected representatives can serve in the House, which means a special election is called for every vacancy. But that process can take a while, and if a catastrophe struck, it could kill many lawmakers at once.
“Every one of us when we go in for the State of the Union thinks about it, at least for a second,” said Rep. Derek Kilmer, a fellow Democrat from Washington state who has picked up the mantle from Baird.
As the president prepares to give his annual speech to Congress in early March, Kilmer sees an opening to talk about continuity planning — not the well-known practice of designating a survivor who could replace the commander in chief but the lesser known ways of the legislative branch.
“Under the law, as it currently exists, Congress would consist of the people left,” he said. “So you’d be in the middle of a national crisis with the people who skipped the State of the Union and whoever couldn’t go because they had COVID.”
Kilmer and some of his colleagues want to change that. They’re trying to do what Baird could not: amend the Constitution to create a quicker plan of succession for the House.
The first step is introducing a joint resolution, which Kilmer said they hope to do sometime before this year’s State of the Union address on March 7. And House Administration Chairman Bryan Steil has signaled openness to a hearing on the topic.
“The rising threat of political violence makes it something that Congress needs to pay more attention to,” said Kilmer, who is retiring at the end of this term.
While the 17th Amendment to the Constitution already allows Senate vacancies to be filled on an interim basis by appointment, that is not the case for the House. Kilmer wants to create a new system for his chamber that would require each elected House member to submit a list of at least five qualified designees as potential successors. Then, if a member died in office, the governor of that person’s state would quickly tap someone from the list. The appointee would serve until a new member could be elected in a special election.
The plan would remove the incentive for political violence, Kilmer said, because any member would likely choose successors from his or her own party.
Amending the Constitution is not exactly easy. Two-thirds of each congressional chamber would need to vote in favor. From there, the proposal would go to the states, and three-fourths of the legislatures would have to ratify it.
The most recent constitutional amendment was adopted in 1992, and new attempts are usually messaging tools. So far this Congress, members have introduced dozens of proposed constitutional changes, aimed at everything from lowering the voting age to requiring balanced budgets. None has gained meaningful support.
“So we’ll see how this goes,” Kilmer said. “We’ve had conversations across the aisle with a whole bunch of people. Every single person says the status quo is a real problem.”
“Getting a constitutional amendment passed is really hard,” said Republican Rep. William R. Timmons IV of South Carolina, who has worked alongside Kilmer on efforts to modernize the legislative branch. “But this is a problem. And with the narrow majority of this Congress, there’s no better opportunity for us to address this. Hell, a car wreck with a half-dozen members in it could be sufficient to flip the majority.”
Like signing a will
But when it comes to the continuity of Congress, not everyone agrees. The idea of appointees in the House can provoke strong feelings, as Baird discovered in the mid-2000s.
In the wake of 9/11, lawmakers debated how to prepare the chamber for another terrorist attack and settled on some changes. Among other things, they required faster special elections in the case of extraordinary circumstances, and they updated House rules to include a method for establishing a provisional quorum when many members are missing or dead.
Baird balked at the quorum change since it would allow just a small number of representatives to conduct important business. He argued for temporary appointees instead.
During his 12 years in office, Baird repeatedly proposed a constitutional amendment — and it was repeatedly ignored or shot down. He attributes his failures to two persistent trends in Congress: “Bipartisan delusions of immortality and serious lack of responsibility.”
While lawmakers in Baird’s time were imagining an act of terrorism like the one that devastated the World Trade Center and the Pentagon, Kilmer and his colleagues have been through a deadly pandemic and seen a spate of politically motivated violence, including a shooter opening fire on a Republican baseball practice in 2017 and a mob breaching the defenses of the Capitol on Jan. 6, 2021.
A new era requires a new plan — or at least a hard look at the old one, advocates say.
Special elections must be held within 49 days of any mass vacancy, according to the post-9/11 law. But some worry that states won’t be able to meet that deadline, or that 49 days could feel like a lifetime.
“After Sept. 11, this body convened. I was there. We modified FISA. We authorized the use of force in Afghanistan and elsewhere. We did a lot of stuff in 49 days,” Baird said in 2022 at a hearing of the Select Committee on the Modernization of Congress, which Kilmer and Timmons led before it disbanded.
And just a few vacancies could cause the majority to flip. “Forty-nine days is a long time to have a vacancy, particularly if one considers hopefully low probability circumstances — but circumstances that if they happen will be a real problem — of someone perpetuating political violence to try to shift the majority,” Kilmer said.
Capitol Police continue to log thousands of threats against members and staff in recent years, and Republicans in the House now hold a razor-thin majority. With the resignation of Rep. Bill Johnson in January, House Republicans had just 219 voting members.
That small margin means even an event involving a handful of members could upset the balance of power.
Eight members of the House Administration Committee in December sent a letter to the Government Accountability Office to study states’ ability to quickly hold special elections in the event of a mass casualty event. Earlier this month, Steil and Kilmer invited all 50 secretaries of state to participate in that study.
“Our Committee is devoting renewed attention to this matter in light of the worrisome increase in the number of serious, credible threats against Members of Congress,” Steil wrote to the state officials.
Meanwhile, Congress should be thinking big, Kilmer said. As part of its closing report, the Modernization panel he used to lead called for a joint committee to explore continuity “in the face of the next, potentially unforeseen crisis.”
If such discussions never happen, some observers won’t be surprised. Getting lawmakers to think about their own deaths can be hard, said Martin Frost, a Texas Democrat who served in the House from 1979 to 2005.
Frost helped convene a bipartisan working group in the months after 9/11, and he saw how many emotions the topic stirred up.
“Some lawyers will tell you when they draft a will for a client, the client delays coming in to actually sign the will because they think once they sign the will they’ll die,” Frost said at a January event at the Capitol hosted by Kilmer, Timmons and the Association of Former Members of Congress. “So there are all kinds of reasons why people may not want to deal with this issue.”