The rules package passed by the House on Tuesday included three changes that will help the chamber function in the event of a terrorist attack.
The new rules permit the Speaker to: designate a list of Members who could temporarily take over that leadership role in the event of the Speakerís death; recess the chamber at any time if there was an imminent threat; and adjust the total number of Members in the House.
The changes were the product of the bipartisan Continuity of Congress Working Group, which was created last spring to study ways to ensure that the legislative branch could operate in the event of a catastrophic attack. Republican Policy Committee Chairman Christopher Cox (Calif.), who chairs the working group, and Democratic co-Chairman Martin Frost (Texas), proposed the rules in a Nov. 12 letter to Rules Chairman David Dreier (R-Calif.).
"We defined a universe of problems to be solved. This is the rules solution to those problems," Cox said. "To the extent that problems remain, those will have to be addressed through different means."
The three new rules deal with specific issues the group foresaw in the event of disaster.
The first rule directs the Speaker to designate to the Clerk of the House a list of Members, in order, who could serve as Speaker Pro Tem if the Speaker died or was incapacitated. The rule doesnít specify the number of people to be put on the list. The Speaker Pro Tem would have limited capabilities, primarily limited to reconvening the House in order to elect a new Speaker or a new Speaker Pro Tem.
The second change allows the Speaker to recess the House at any time if he or she is informed of an imminent threat to Membersí safety. Prior to this measureís enactment, the Speaker could only recess the House when no matter was pending.
Last year the working group changed the standard adjournment language to allow leadership designees to call Congress back into session in the event the Speaker and the Senate Majority Leader were killed or incapacitated. Under the old rules in such a scenario, only the president could have reconvened Congress by calling an emergency session.
The third new rule deals with the issue of a majority of Members being killed or incapacitated, in which case the House would not be able to form a quorum. The Speaker is now allowed to adjust the whole number of the House upon notification of the death, resignation or expulsion of a Member. Without this measure, the House could not convene until enough special elections were held to constitute a majority of the 435 seats in the House.
If a catastrophe occurred, the House would find itself in a much more unworkable predicament than the Senate in the absence of an amendment to the Constitution or a statutory or rule change. Unlike the Senate, to which state governors can appoint new Members to fill vacant seats in a matter of hours, the House is bound by the Constitution in seating only directly elected Members.
Earlier this year, Cox and Frost introduced a nonbinding resolution encouraging the states to ensure that their laws allow "timely" special elections in the event of a national disaster.
"The approach that we took was to begin with the constitutionally least intrusive means," Cox said. "The hierarchy of solutions was rules first, statutes second, constitutional amendments ó if at all ó third and last. It is enormously difficult to amend the Constitution, and we might not ever get it done. And we didnít want to undertake amending the constitution lightly."
A potential threat to stable continuity that could be addressed by statute is presidential succession.
"We have a sturdy presidential succession in almost all cases," Cox said. "But if one assumes the simultaneous death of the president, vice president, Speaker, Senate President Pro Tem, there are serious anomalies."
Cox was referring to the ambiguity in the Presidential Succession Act of 1947. The secretary of State would become president following the death or incapacitation of the president, vice president, Speaker and Senate President Pro Tem. But it is unclear in the statute whether the election of a new Speaker would then launch him or her into the presidency and oust the secretary of State.
"Itís rather clear that a time when the nation needs [stability] in its government, you donít want musical chairs in the Oval Office nor do you want to displace a known leader with an obscure figure, especially if the process is such a rump one," Cox said, explaining that if only two Members of the House remained, one could become Speaker and then theoretically challenge the new presidentís legitimacy.
"A solution to that problem is to say that instead of a situation in which an election of Speaker after the fact trumps, we go down the list only once," Cox said.
Following the Sept. 11, 2001, attacks, Rep. Brian Baird (D-Wash.) began calling for a constitutional amendment to deal with a potential crisis. His language would give governors the power to make temporary appointments to the House if more than 25 percent of the Members were killed or incapacitated. Sen. Arlen Specter (R-Pa.) and Rep. Zoe Lofgren (D-Calif.) introduced similar resolutions during the 107th.
Baird praised the rules changes, which he helped to promulgate as a member of the working group, in a statement Wednesday.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.