The day after 9/11, all the Members of Congress gathered on the steps of the Capitol to sing “God Bless America” and signal to the world that America was bloodied but unbowed. It lifted national spirits. Then came a whirlwind of important legislative activity, from the authorization to use force in response to the USA PATRIOT Act to emergency appropriations to pay for the effect of the attacks on the World Trade Center and the Pentagon. If there had been no House, there would have been action, except that done by executive fiat, otherwise known as martial law. For four to six crucial months, setting precedents that would last, all without vital checks and balances.
Soon thereafter, we experienced the frightening anthrax attacks on the Senate. If the high-grade inhalation anthrax had been part of a coordinated terrorist attack, it could have been introduced into the Senate ventilation system and possibly left dozens of Senators dead or in intensive care units for months.
If most states allow governors to use appointments to fill vacancies in Senate seats, there are no ways to deal with incapacitated lawmakers other than expulsion. Of course, that is a horrible and unfair penalty for people victimized by terrorists, who will eventually be able to regain their jobs — we see an echo of this in the Arizona law that might actually remove Rep. Gabrielle Giffords (D) from her seat if it takes her more than three months to return to the Hill. But there could be no expulsions in the Senate if more than half its Members were out of pocket, and there was no Senate.
To me and many others in the immediate aftermath of 9/11, it was clear that the country needed new procedures to deal with the new and real threats — ways to get emergency interim appointments to the House if and only if it suffered a massive and debilitating attack and only until there could be real and meaningful special elections to fill the vacancies and to temporarily fill seats in both chambers of those incapacitated in a widespread attack, but only until those who were incapacitated were ready to resume their seats and duties.
So what has been done? Nothing of meaning. Both parties and their leaders in both chambers have sadly abdicated their fiduciary responsibilities to their institutions, the Constitution and the country for more than nine years. A few lawmakers have spoken up regularly and tried to get something done, starting with the splendid Rep. Brian Baird (D-Wash.), who sadly just retired, and including his bipartisan partner, Rep. Dana Rohrabacher (R-Calif.), who remains fortunately involved, and Sen. John Cornyn (R-Texas), who was a champion in the Senate when he chaired the Judiciary Subcommittee on the Constitution. We need new champions, Members who will push to protect Congress and provide some insurance when the nearly inevitable next terrorist attack occurs. Any takers?
Norman Ornstein is a resident scholar at the American Enterprise Institute.