Senate vacancies can, in most cases, be filled by executive appointment — but that does not apply to incapacitation. If the anthrax attack had indeed been a terrorist plot, with weapons-grade anthrax inserted into the Senate's ventilation system, 60 or more Senators might have been laid up with inhalation anthrax, meaning no Senate for an indefinite period.
Soon after, I was approached by Lloyd Cutler, the late White House counsel and superlawyer; with him, we helped create a blue ribbon independent commission, co-chaired by Cutler and former Sen. Alan Simpson (R-Wyo.).
After months of hearings and intensive study of the issues and potential solutions for the continuity of all three branches, we issued a report with detailed recommendations on Congress, followed by one on presidential succession, along with a series of recommendations for the continuity of the Supreme Court.
Dealing meaningfully with the continuity of Congress, we concluded, would require a constitutional amendment, narrowly drawn to be triggered only in the event of a catastrophe, while dealing with presidential succession and the Supreme Court would require only statutory change.
I did not think anything significant would happen in the first year or two after 9/11. Constitutional amendments, appropriately, are very hard to move in Congress, and statutes to reform or create succession plans are not generally a high priority. But I would not have predicted that 10 years later we would be stuck at square one.
In that first year, after months of pressure, the House Judiciary Subcommittee on the Constitution held one hearing on the issue — at which the chairman made clear there would be no action and no more hearings.
Then-Speaker Dennis Hastert (R-Ill.) created a working group, co-chaired admirably by then-Reps. Chris Cox (R-Calif.) and Martin Frost (D-Texas), which did diligent work and issued a report with some recommendations, but it was clear from discussions with the Republicans on the panel that the Speaker had given them marching orders, and they were not to recommend anything serious.
The Senate Judiciary subpanel on the Constitution, thanks to the leadership of Sen. John Cornyn (R-Texas), actually reported out a proposed constitutional amendment to allow emergency interim appointments to the House for vacancies caused by a massive catastrophe and to both bodies for temporary replacements for incapacitation. But under pressure from House Republican leaders, then-Judiciary Chairman Orrin Hatch (R-Utah) made sure nothing more happened.
It is dismaying that 10 years later, the only plans we have in place to deal with a devastating terrorist attack on Congress are unrealistic, unconstitutional and/or counterproductive.
At the instigation of then-House Judiciary Chairman Jim Sensenbrenner (R-Wis.) and Rules Chairman David Dreier (R-Calif.), we have a law that requires expedited elections for the House that are virtually impossible to carry out and would still leave the chamber inoperable for a critical 45 days after a devastating attack. And we have a House rule that directly violates the clear constitutional language on quorum requirements for the House.