Head to Head: Ornstein Takes on Two Lawmakers

Posted September 16, 2003 at 2:58pm

Monday was a banner day for the Congress Inside Out column. Two powerful lawmakers took up nearly a full page in the letters to the editor section of Roll Call to rip me for two separate columns. It doesn’t get much better than that.

[IMGCAP(1)]I was going to write about homeland security today. But I can’t pass by these two tough (in the case of Wisconsin GOP Rep. Jim Sensenbrenner, vituperative) letters.

Let me deal first, and briefly, with Sen. Ben Nelson’s (D-Neb.) objection to my column on party unity. My basic point, of course, was Bargaining 101: The best way for a minority party to have continuing leverage with a majority determined to act as unilaterally as possible and with impressive unity of its own is to hang together, inflict a few setbacks on the majority party, and force it to deal with the minority and move its policies toward the center.

On to House Judiciary Chairman Sensenbrenner, who attacks me vigorously for raising questions about his Continuity in Representation Act. My first reaction was to laugh at his timing; he cites the California gubernatorial recall election favorably, which is a real hoot after Monday’s court decision showing the tension between voting rights and expedited unexpected elections. To be sure, he also cites the Minnesota election after Sen. Paul Wellstone’s (D-Minn.) death with a substitute candidate chosen only 10 days before the contest. I guess Sensenbrenner has cut a deal with al Qaeda — they will only stage a terrorist attack on the Capitol within three weeks of a previously scheduled general election, so that the polling places, voting machines, trained poll workers, basic ballots and so on will be in place.

The Sensenbrenner bill, to remind Roll Call readers, triggers mandatory three-week elections (one week after candidates are selected) if the Speaker declares that there are 100 vacancies. I suggested a gap in the bill: What if there were no Speaker? Sensenbrenner answers by asserting my ignorance of House rules and of his bill. House Rule 1 does make provision for a Speaker Pro Tem, selected by the Speaker “only to sign enrolled bills and joint resolutions” for a specified period of time in the Speaker’s absence. It provides for a list of such people to act as Speaker Pro Tem if the Speaker is dead or unable to function — with the specified and limited power to arrange for the election of a new Speaker. But these issues ignore my larger point. If the House suffers a catastrophe as large as his bill contemplates, there may be no House — no Speaker, no Members on the Speaker’s list, no quorum, no Speaker Pro Tem, no ability to implement the rules.

Assume we work that one through. Let us say instead that a terrorist attack leaves hundreds of House Members incapacitated, in burn units for several months or in intensive care units with anthrax inhalation. There is no quorum, no House. Does Sensenbrenner contemplate the Speaker or Speaker Pro Tem expelling those incapacitated Members from the House so that they can be replaced with expedited special elections — even if they would be ready to serve again in a few months? Or do we just wait for months until they can resume their seats?

I suppose some might argue that this scenario is implausible — although anybody who watched the House panic at the possibility of an anthrax attack moving across the Capitol grounds from the Senate knows the Speaker and his colleagues took that threat very seriously. And the reality of the post-Sept. 11, 2001, world is that chemical and biological weapons of mass destruction are the coin of the terrorist realm and are perhaps more likely to cause widespread incapacitation than mass deaths. And expedited special elections as a stand-alone remedy do nothing to deal with the incapacitation problem.

So let us return to holding hundreds of super-expedited elections under national duress. Sensenbrenner says I am wrong in stating that independent candidates would be out of luck in a two-week selection process; any candidate “authorized by state law,” he notes, could run. Please tell me how state laws would work to authorize such candidates within two weeks, given their ballot access requirements for candidates. He puts his faith in the American people. So do I. But I also put my faith in the hands of expert election officials who testified last week in front of the Senate Judiciary Committee, a body taking its responsibilities seriously. Doug Lewis of the Election Center in Houston, an international organization of election and registration officials, reflecting a consensus among his peers, believes that election officials would step up to the plate at a time of national emergency (so do I, they are solid public servants) and could conduct nationwide House elections in 45-51 days — with an additional 10 days after for counting provisional ballots and certifying the results.

Lewis noted a range of problems. Ballots are not printed on ordinary paper, but on special “ballot stock.” It is not kept in warehouses to be used at any time; the ballot stock is created as an election approaches. There are about seven vendors nationwide who print ballots. They have been nearly paralyzed in California with two months to print the ballots. At the same hearing, Samuel Wright of the National Defense Political Action Committee pointed out that three-week elections would require a suspension of federal laws that require notice and time for overseas absentee military people to vote, and that effectively the overseas military would be frozen out. As for Internet voting, 80 or so votes were cast this way in 2000, with a pilot program to operate in 2004. But the serious concerns about security and the questions about workability of programming and machine calibration have made the experts move with extreme caution here.

I enthusiastically support a bill that would encourage the states to fit an expedited timetable and give them resources to help them accomplish that goal. It is by no means mutually exclusive with the Continuity of Government Commission’s recommendation of emergency interim appointments to the House until these expedited special elections can be held.

The lowest blow struck by Sensenbrenner in his letter, a new record for disingenuousness, says “Ornstein’s proposal bans voting for House Members entirely, for everyone, everywhere.” Of course, that is false. I want elections, as soon as is practically possible — real elections, not sham elections. I want an elected House. But even more, I want a functioning House. I also want senior House Members to get their heads out of the sand and move past emotionalism to confront their genuine fiduciary responsibility.