Myths and Realities In the Debate Over Continuity of Congress

Posted June 1, 2004 at 6:46pm

Editor’s note: The House is scheduled to vote today on the constitutional resolution on the continuity of Congress drafted by Rep. Brian Baird (D-Wash.). Rep. Jim Sensenbrenner (R-Wis.) — who opposes Baird’s approach and whose bill to expedite special elections to the House in the case of mass casualties was passed earlier this year — was, like Baird, offered an opportunity to outline his view on a constitutional approach. He declined.


“The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” — James Madison in The Federalist No. 47.

Almost three years after narrowly escaping the attacks of Sept. 11, 2001, the House will at last debate a resolution to establish continuity of the Congress. The resolution before us may not be perfect, but if we do not take action to ensure the continuity of the House following catastrophic losses, we risk abrogating all powers of government to an appointed executive, thereby enabling the very structure of tyranny that Madison warned against. We also risk allowing terrorists to instantaneously alter the political makeup of the Congress and the executive branch.

Myth: We have already solved the problem.

Last month the House passed H.R. 2844, providing for expedited elections. The bill has yet to be considered by the Senate, but even assuming it becomes law and the inherent logistical challenges are resolved, this still leaves our nation without a functioning House, or with a House profoundly altered politically, for at least 45 days, and possibly many more. This is not a solution — unless one believes the House itself is unnecessary in times of national crisis, or that terrorists should be allowed to choose our president.

Wishful thinking: Continuity is not urgent.

Last week, Attorney General Ashcroft and FBI Director Robert Mueller warned that terrorist cells may be operating within our borders and may have in high-profile locations or events in their sights. The daily sessions of Congress and upcoming party conventions must be on that list, yet there is no sense of immediacy among the Congressional leadership. Should our enemies take advantage of our leaders’ lack of urgency, the opportunity to craft a real and viable solution may literally evaporate before our eyes.

Myth: Continuity is a partisan issue.

Distinguished Republicans, including Sen. John Cornyn (R-Texas) and former Sen. Alan Simpson (R-Wyo.), have studied this issue in depth and concluded that an amendment to allow for temporary replacements is necessary. Simpson’s conclusions are reflected in the report of the independent Continuity of Government Commission, while Cornyn’s proposal has now passed the Senate Judiciary subcommittee on the Constitution with strong bipartisan support. These proposals differ from H.J. Res. 83, but there is agreement on the key principles that the status quo is unacceptable; that a constitutional amendment of some form is required to solve the problem; and that temporary appointments would not threaten (and in fact are necessary) to preserve the fundamental structure of our constitutional government.

Myth: Temporary appointments subvert the right to elect representatives.

The fact is, all the various proposals for temporary appointments, including H.J. Res. 83, specifically provide for special elections to replace Representatives. Temporary appointments do not subvert this fundamental principle and, contrary to claims of opponents, no one has proposed any “ban” on elections.

Myth: Appointees would be irresponsible and have “no allegiance to the American people.”

As elected Representatives, we are entrusted to make all of the decisions granted under Article I of the Constitution, yet we are somehow expected by the opponents of this resolution to suddenly become irresponsible or venal if asked to select people who could temporarily fill our posts in time of crisis. Surely, the opposite must be true. In choosing temporary successors, Members would exercise great care and the successors themselves, who would include many former Members of Congress or current legislators, would be tremendously responsible and take their posts with the utmost seriousness. It is an insult to the current membership and to those they might consider as successors to suggest otherwise.

Fact: What H.J. Res. 83 really does.

H.J. Res. 83 allows elected Members of the House to create a list of individuals who would be designated to temporarily fill our posts in the event of our death or incapacity under catastrophic circumstances. The replacements would last only until special elections could be held.

This common-sense procedure preserves the separation of powers and Congressional responsibilities provided for in the Constitution, provides for real elections, assures that our constituents have representation in Congress during a crisis, and — of particular importance as we contemplate the coming conventions — prevents terrorists from changing the political balance of the Congress and the presidency.

Fact: What H.J. Res. 83 prevents

If the warnings of Ashcroft are realized and terrorists attack the upcoming Republican convention killing the president, the vice president, and dozens of Representatives and Senators, then the majority of the House, the Speaker’s post, and, thereby, the presidency will shift to the Democrats and remain there until at least the November elections.

That is the law as it stands today.