Bill Addresses Incapacitated Senators

Posted February 2, 2004 at 3:40pm

Three Senators introduced a bill last week that would provide for the continuity of their chamber if mass incapacitation prevented the Senate from reaching a quorum.

Introduced by Sens. John Cornyn (R-Texas), Trent Lott (R-Miss.) and Chris Dodd (D-Conn.), the legislation would authorize each state to provide for temporary appointments as they see fit in the event the Majority Leader and Minority Leader, or their designees, determine that an absence of a quorum is caused by the inability of Senators to “discharge the powers and duties of the office during a time of national crisis.”

The language in the bill would be invalid without a constitutional amendment allowing for the temporary replacement of lawmakers.

Cornyn introduced amendment language in November that would trigger such action if one-fourth of the Members from either chamber are killed or incapacitated. Republican leaders in the House, however, have maintained their steadfast opposition to any provision that would allow appointments to that chamber.

The Constitution stipulates that House vacancies be filled by special election. Although the 17th Amendment provides for the appointment of Senators in the case of death or resignation, it has no provision for incapacitation. Most constitutional scholars believe neither chamber has a way to operate if a biological or chemical incident or other disaster was to render large numbers of lawmakers unable to perform their duties.

In a statement, Cornyn said the bill he introduced with Lott and Dodd, chairman and ranking member, respectively, of the Rules and Administration Committee, “delegates to each state the authority to enact such special emergency procedures. This is consistent with … the spirit of the 17th Amendment, which gives each state the power to decide whether to empower their governors to make immediate appointments to fill vacancies in the Senate.”

While neither chamber has provisions for mass incapacitation, the House also has no way to quickly reconstitute itself in the case of mass deaths.

House Judiciary Chairman Jim Sensenbrenner (R-Wis.) authored legislation that would expedite special elections to within 45 days after the Speaker certifies that more than 100 Members have been killed. His bill, passed by his committee and now before the full House, does not address incapacitation.

The introduction by Cornyn, Lott and Dodd of statutory language dealing exclusively with their own chamber is a reflection of the political realities across the Capitol. In a statement last week, Cornyn’s office emphasized that their bill — unlike the amendment language and implementing legislation the Texas Republican introduced last session — “would address continuity problems in the Senate ONLY. It would not affect the House in any way.”

Each chamber jealously guards its own prerogative, and Sensenbrenner has indicated that he doesn’t appreciate Senate involvement in how the House selects its Members, even in a crisis. Cornyn seemed to give deference to that position at a hearing he held on the subject last week, saying the Senate would respect the House’s position “out of courtesy and out of necessity.”

But unlike many other issues that solely or uniquely affect one chamber or the other, the issue of continuity could potentially threaten the ability of Congress as a whole to operate within a constitutional system of checks and balances if a terrorist attack or other incident was to kill or incapacitate hundreds of lawmakers. Even if the Senate had a quorum, without the House little could be done. Such circumstances would likely lead the president to govern under martial law until the legislative branch could be reconstituted.

These and other scenarios were discussed at a forum hosted last week by Catholic University Law School. The panel consisted of representatives from the Continuity in Government Commission, a joint venture of the Brookings Institution and the American Enterprise Institute; a handful of constitutional scholars; and James Ho, chief counsel for the Senate Judiciary subcommittee on the Constitution, civil rights and property rights, which Cornyn chairs.