The tragic and shocking murders in Tucson, Ariz., have not surprisingly set off (actually renewed) a debate about security in Congress.
The Capitol Police and Architect of the Capitol have been reviewing and fine-tuning their security in and around the Capitol. Other entities in the House and Senate have been examining and strengthening the evacuation plans for Congress in the event of a larger attack. Individual Members of Congress, as we have heard and read repeatedly this past week-plus, are suffering angst about how they can maintain their hands-on contact with constituents and still feel protected from potential harm — and whether any enhanced security will deter their constituents from showing up at town hall meetings or other public sessions.
The concerns are real, and commendable. I am delighted to see the focus go back to security and equally delighted that we are having a real debate over how to balance openness and accessibility — linchpins of our democracy — with necessary security. But I am even more frustrated that this latest tragedy has seemingly done little or nothing to get a real and meaningful focus on the larger problem: Why do we have no tangible and workable plans in place to maintain a functioning, viable and representative Congress if and when a larger terrorist attack takes place?
This is a familiar refrain, one I have sung repeatedly for more than nine years. But since we have so many new Members, it is time to do it again. Here are the basic facts:
On 9/11, the core framework of the American constitutional system barely dodged a jetliner bullet. If United Flight 93 had left Newark, N.J., on time instead of 45 minutes late, its passengers would not have learned that their plane was a suicide vehicle. They likely would have reacted the same way as the passengers on the planes that crashed into the World Trade Center and the Pentagon and sat tight through the hijacking. The plane would have hit the cast-iron Dome of the Capitol around the same time as a plane hit the Pentagon.
The House was in morning business, and hundreds of Members were in or around the Capitol, many outside on the lawn or on the steps. Plane debris, burning jet fuel, molten iron, chunks of marble and concrete would have rained down on a large area. Very likely, hundreds of lawmakers would have died, gone missing for long periods, or ended up in intensive care units for months.
The Constitution is clear that neither chamber of Congress can do any official business without a quorum, which is half its Members. Vacancies in the House can be filled only by special election, and even in the best of circumstances, individual special elections tend to take about four months. Imagine how long it would take if the country were reeling from a devastating attack and needed hundreds of special elections all at once.
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.
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.