Let Each State Decide How to Fill Vacancies, Address Incapacitation

Posted January 26, 2004 at 2:48pm

When Congress reconvened last week, lawmakers on Capitol Hill immediately returned to the hustle and bustle of the Washington schedule. Work continues on the numerous issues important to all Americans, but there is one matter critical and unique in this age of terrorism that must not get lost in the shuffle: providing for the continuity of our government in the event of a catastrophic terrorist attack or some other major tragedy.

Toward that end, the Senate Judiciary Committee this morning will consider my proposal to amend the Constitution to ensure the continuity of government. This effort, which builds on the work of hearings last year, will accomplish the goal of continuity while respecting the prerogatives of each house of Congress.

Two days before the second anniversary of Sept. 11, 2001, I chaired a Judiciary Committee hearing to examine potential vulnerabilities in our constitutional system of government.

It was painful to recall the events of Sept. 11, but it was a stark reminder of just how close terrorists came that day to successfully decapitating the United States government. Were it not for the late departure of United Airlines Flight 93 and the ensuing heroism of its passengers, the Capitol might have been destroyed — potentially killing numerous Senators and Representatives and perhaps even disabling Congress itself.

The American people must be able to rely on a functioning Congress in the wake of a catastrophic terrorist attack. Although not in session year-round, Congress may need to convene immediately in a time of crisis. In the days and weeks following Sept. 11, for example, Congress enacted numerous emergency laws and appropriations measures to stabilize our economy and bolster national security. Yet we lack the constitutional tools needed to ensure the continuity of Congressional operations.

Under our Constitution, a majority of each house of Congress is necessary to “constitute a Quorum to do Business.” Our founders rightly understood the need for a nationally representative Congress. However, that important commitment carries with it certain vulnerabilities.

If a terrorist attack killed a majority of House Members, Congress would be disabled until special elections could be conducted around the country. According to every election official who has contacted my office, this process takes months — time we may not have. Moreover, if a majority of Representatives were to become incapacitated, the House would be shut down until the inauguration of a new Congress — a delay of as long as two years.

The situation could be even more dire in the Senate. The 17th Amendment permits state legislatures to empower governors to make immediate appointments to fill vacancies in the Senate, and every state except Oregon and Wisconsin has chosen to do so. Yet the Constitution provides no mechanism whatsoever for dealing with Senators who are incapacitated but not killed. If a biological weapons attack incapacitated a majority of Senators, Congress could be shut down for as long as four years.

Our Constitution does not prepare us for such dire circumstances, because our founders could not have contemplated the horrors of Sept. 11. After all, they lived in a world free of weapons of mass destruction and international terrorist organizations bent on our destruction.

Yet the founders, in their great wisdom, well understood that they could not predict everything that this new nation might someday need or what the future might someday hold. They wisely ratified the Constitution specifically because it included a built-in procedure for amendment in Article V.

The amendment I introduced last November, S.J. Res. 23, authorizes Congress to enact laws providing for Congressional succession — just as Article II of the Constitution authorizes laws providing for presidential succession. The implementing legislation, S. 1820, authorizes each state to craft its own mechanism for filling vacancies and redressing incapacities in its Congressional delegation — just as the 17th Amendment authorizes states to decide how to fill vacancies in the Senate.

I recognize that some House Members favor emergency interim appointments to ensure immediate continuity of House operations, while others prefer to rely solely on expedited special elections. Under my approach, each state would make its own choice.

Some states, in order to expedite the conduct of special elections, may be prepared to adopt Internet voting, enact same-day registration laws or abandon party primaries — while other states may be concerned that expedited special elections are undemocratic or will disenfranchise military voters.

Moreover, this morning I introduced new implementing legislation, focusing exclusively on the Senate, called the Continuity of the Senate Act of 2004. If House Members decide to rely solely on special elections to cure continuity problems in their chamber, I will not stand in their way. By the same token, the House should not prevent Senators from resolving continuity issues in our chamber.

Twenty years ago, after nearly killing British Prime Minister Margaret Thatcher and senior members of her government, Irish Republican Army terrorists issued a chilling threat: “Remember, we only have to be lucky once. You have to be lucky always.”

The American people deserve a constitutional system of government that is failsafe and foolproof. This issue is too important to get lost in the shuffle. We must plan for the unthinkable now, not just rely on luck.

Sen. John Cornyn (R-Texas) is chairman of the Judiciary subcommittee on the Constitution, civil rights and property rights. Cornyn chaired hearings on continuity of Congressional operations and presidential succession in September.