Four months from now, Washington and all of America will solemnly commemorate the third anniversary of the Sept. 11, 2001, terrorist attacks. As it participates in the memorials, Congress should also observe — with chagrin — that it has failed to heed the warning of 9/11. Congress has yet to provide for its own continuity in the event of a catastrophic attack.
The 17th Amendment to the Constitution provides a mechanism for replacing Senators who die while in office. But it does not do so when they are incapacitated — something that could happen to large numbers in an attack on the Capitol. And, there is no constitutional provision whatsoever for replacing House Members who die or are incapacitated. Despite alarms raised as the enormity of 9/11 unfolded — United Flight 93, crashed by heroic passengers in Pennsylvania, was almost certainly on its way to Washington — Congress has been unable to come to an agreement on solving the problem.
Conflicting approaches are being considered by the Senate and House; by now, it’s dead certain that nothing will be accomplished during this Congress. Substantive disagreement between the bodies — combined with the stubbornness and partisanship displayed by House Republican leaders — creates the real possibility that Congress will never solve the continuity dilemma and thus risk the existence of a functioning legislative branch in the event of a devastating terrorist attack. It is simply irresponsible.
Of the two chambers’ responses to the issue, we much prefer the Senate’s, both in substance and in process. Sen. John Cornyn (R-Texas), chairman of the Judiciary Committee’s subcommittee on the Constitution, has written a proposed constitutional amendment that would empower Congress to pass laws providing for its continuity in the event of the death or incapacitation of 109 House Members or the incapacitation of 25 Senators. Cornyn favors implementing legislation that would leave it up to the states to determine the means of filling vacancies — much as the 17th Amendment does in the case of Senators who die in office. In practice, 47 states have opted for temporary appointment by the state’s governor; three require special elections.
Cornyn’s subcommittee passed his proposal last week on a bipartisan basis, with only Sens. Edward Kennedy (D-Mass.) and Charles Schumer (D-N.Y.) objecting on grounds that they’d prefer to avoid a constitutional amendment. In the House, Republicans led by Judiciary Chairman Jim Sensenbrenner (R-Wis.) have been adamantly opposed to a constitutional amendment as well as to the idea that vacancies could ever be filled by a process other than election.
So, on a straight party-line vote, the committee adversely voted out a proposed amendment sponsored by Rep. Brian Baird (D-Wash.) that would have allowed the naming of alternative Members who could take office in the event that those elected were rendered unable to serve. The House has also passed a bill authored by Sensenbrenner that instructs the states to hold special elections within 45 days of a mass loss of House Members; it is also likely to consider a rules change that would reduce the quorum requirement in the event of mass incapacitation. Such legislation strikes us as impractical, and the rules change may be unconstitutional.
Ever since 2001, we’ve urged House and Senate leaders to act responsibly, to ensure that the people of this nation are represented in the event of a catastrophe, and that the government is not left strictly in the hands of the executive. Sadly, it hasn’t happened.