Continuity Still Not on the Agenda

Succession Questions Put Off

Posted October 22, 2003 at 6:29pm

Even as key players begin to stake out public positions on how best to ensure continuity of Congress, it appears increasingly unlikely the issue will be resolved before the chambers adjourn for the year.

The House Administration and Senate Judiciary committees each held lengthy hearings on the issue in September, and House Administration Chairman Bob Ney (R-Ohio) and Judiciary subcommittee Chairman John Cornyn (R-Texas) have both promised to move forward expeditiously.

But the Congressional calendar looms as a major obstacle to that goal. With 10 of the 13 appropriations conference reports yet to be passed and an omnibus likely, the Iraq war supplemental pending and energy and Medicare conference negotiations ongoing, there’s little room to debate a constitutional amendment or other proposals to ensure the legislative branch will function after a catastrophe.

“There are a whole number of items we have in queue and ready to go, but right now we are focused on the supplemental and other appropriations bills,” said Robert Stevenson, spokesman for Senate Majority Leader Bill Frist (R-Tenn.).

But the crowded calendar hasn’t dulled Rep. Brian Baird’s (D-Wash.) interest in forcing leaders to make it a priority.

Baird plans to introduce a proposed amendment soon that would allow for the temporary appointment of House Members. “We are in the final stages of drafting the amendment,” Baird said recently.

Less concerned about his own proposal than inciting debate, Baird is working on a resolution that would provide a rule for floor debate of any “reasonable” proposal and plans to send out a “Dear Colleague” asking Members to bring their ideas forward. “I really want this to be inclusive,” he said.

If House leaders don’t bring up the resolution, which would provide for a week of debate on all of the proposals, Baird plans to circulate a discharge petition, which would require 218 votes — a threshold he met earlier this year on a letter to Speaker Dennis Hastert (R-Ill.) requesting prompt action on the issue.

Baird soon might not be alone in crafting amendments. House Administration ranking member John Larson (D-Conn.) has indicated he plans to introduce language of his own. And Cornyn and Senate Rules and Administration Chairman Trent Lott (R-Miss.) are in the early stages of assembling their own proposal, according to Cornyn spokesman Don Stewart. In June, Senate Judiciary Chairman Orrin Hatch (R-Utah) also announced his intention to draft a constitutional amendment.

“There is a valid and a legal concern that a [special] elections process” alone isn’t enough to address the issue, Larson said. Instead of allowing Members to draft a list of their own successors, as Baird’s amendment would do, Larson talked about having state Legislatures appoint House Members if a large number, perhaps a majority, were killed or incapacitated. The responsibility would go to governors if the Legislatures couldn’t or wouldn’t act.

“We were a Continental Congress first, appointed by legislative bodies,” the former history teacher said. “This is part of what I thought being a Member of Congress was all about.”

Having more specific proposals with which to work could serve as a catalyst for action on an amendment, according to a leadership aide, who suggested that the lack of actual language introduced this session has stymied debate. “If you are going to go down that path, a lot of Members would prefer to be more specific.”

Both Ney and Cornyn have expressed their desire to do so, and at this point it seems that House Administration and Senate Judiciary, along with perhaps Senate Rules and Administration, will be the biggest players.

“It’s a complicated issue. I have stayed open to talking about the whole idea. That’s why I am not on any of the bills,” Ney said. He plans to meet with the rest of his committee before settling on a course of action. “A constitutional approach has some real problems with it, but … whatever we do, we have to do something. It wouldn’t behoove us to wait another couple of years.”

Cornyn went even further in a statement he submitted for the House hearing — which heard testimony from many of the same witnesses Cornyn had called before his panel.

“I am open to any proposal that gets the job done,” he wrote. “And I certainly respect the sincere desires of House Members to preserve, to the maximum extent possible, the tradition that every Member of the House is elected.

“I am concerned, however, that special elections alone — without constitutional provision for interim emergency appointees — will either take too long to conduct and thus fail to ensure adequate continuity of Congressional operations, or will sacrifice too many other important principles and traditions, such as meaningful democratic elections and voting rights, in the process.”

At their hearing, Ney and Larson both expressed reservations that expediting special elections alone would adequately deal with mass incapacitations in the House. Judiciary Chairman James Sensenbrenner (R-Wis.) acknowledged that his bill — which would require states to hold special elections within 21 days of a declaration by the Speaker that more than 100 Members had perished — is silent on the issue.

American Enterprise Institute resident scholar Norman Ornstein (who is also a regular Roll Call contributor) testified to both committees that incapacitation probably poses a greater risk to the institution than do mass casualties.

Even though the 17th Amendment allows governors to appoint Senators in the event of death or resignation, there is no provision for incapacitation in either chamber, meaning that it’s theoretically possible that if 50 Senators were in the hospital and unable to perform their duties or resign, they could not be replaced (unless the Senate expelled them), which would leave the Senate unable to operate with a quorum for up to two full election cycles.

Opponents of a constitutional amendment have pointed out that Members could simply give power of attorney to third parties, who could resign their seats, or each chamber could expel its incapacitated Members. But Ney and others have called that “a very touchy subject,” as it would remove from office lawmakers who may only temporarily be unable to perform their functions.

The issues posed by incapacitation alone demonstrate the complexity of the continuity debate and underscore the difficulty in passing a comprehensive remedy at the end of the session — and perhaps even more so if the debate rolls into an election year.

Larson and other committee members at the hearing urged a compromise between what seems to many to be totally disparate ideas: a constitutional amendment and expedited special elections.

“In many respects, don’t you need both?” Larson asked Sensenbrenner. “Would the Judiciary Committee entertain the idea of a constitutional amendment?”

The House Judiciary subcommittee on the Constitution held a hearing more than a year ago, but as Ornstein said, “It was made clear early on that that was going to be it.”

Sensenbrenner, along with Rules Chairman David Dreier (R-Calif.), opposes temporary appointments to the House. Dreier and Rep. Candice Miller (R-Mich.) co-sponsored Sensenbrenner’s bill to mandate that states expedite their special elections and testified before the panel.

While Sensenbrenner indicated that he didn’t think compromise on such a philosophical issue was possible, Donald Wolfensberger, director of the Congress Project at the Woodrow Wilson International Center for Scholars, who testified in strong opposition to an amendment, said that given the issue of incapacitation, he could imagine a constitutional change would be necessary.

Ornstein, who served on the independent Continuity of Government Commission that determined an amendment was the only viable option, agreed that Larson was on to an area of possible compromise.

“Appointments to the House should not be routine things. Please move forward with expedited special elections. Do it in a reasonable time frame,” he said. “But if it precludes [dealing] with incapacitation, we will have failed in our responsibilities.”

In pushing for his bill, Dreier told the committee that its biggest advantage is: “We can move very, very quickly to pass this legislation as opposed to the seven years for a constitutional amendment.”

That’s a view shared by many Members, including those who support an amendment generally.

But Baird pointed out in his testimony, “If we were to pass the [amendment], it’s then available for ratification. The more urgent matter is to put that measure before the body.”