What Happened With Continuity, and Why

Posted December 3, 2004 at 6:18pm

On Sept. 11, 2001, as United Airlines flight 93 crashed into a Pennsylvania field, Members and staff scrambled out of the Capitol with the terrifying belief the plane was headed for the Dome.

The 9/11 commission report later outlined ringleader Mohamed Atta’s focus on the first week of September — just after the annual Labor Day recess — “so that the United States Congress would be in session.”

But in the ensuing three years, few in either chamber seem ready to contemplate what would happen to the legislative branch in the immediate aftermath of a devastating attack. And there has been no sustained dialogue in either body of how to solve the complex dilemmas in which the Senate and especially the House would find themselves.

To be sure, the House has passed a bill to expedite special elections to within 45 days of an attack, although the Senate has yet to take it up. Both chambers have held a few hearings on the continuity of Congress, and both have enacted a series of procedural rules changes that would better allow each body to function in certain circumstances. The House Rules Committee also has held a hearing on a highly controversial and arguably unconstitutional proposed rules change to allow the Speaker to revise the quorum requirement downward to exclude incapacitated Members. Rules Chairman David Dreier (R-Calif.) announced at the recent GOP retreat that he intends to incorporate the change into the rules package for the 109th Congress, according to GOP aides.

But where actual statutory or constitutional changes are concerned, Congress is in exactly the same position it was more than three years ago. An attack that killed or incapacitated large numbers of Members would, depending on the circumstances, debilitate the institution for days, months or even years, at the very time when momentous policy decisions would have to be made. Absent a functioning Congress, the country likely would live under protracted martial law.

“I am astonished and even shocked that in the years since Sept. 11, Congress has not taken anything approaching decisive action on this terrifying and yet vital issue,” said Congressional expert Rogan Kersh, a Syracuse University professor.

And the prospects for significant attention to legislative branch continuity in the 109th Congress seem bleak, at best.

“Looking ahead, I expect nothing to happen,” said Rep. Zoe Lofgren (D-Calif.), one of a half dozen Members who have been active on the issue. “It’s dead until we’re dead.”

This article, drawing on interviews with more than two dozen constitutional scholars, lawmakers, staff and other experts, attempts to answer why. Why has an issue so fundamental to representative government in an age of terrorism — how a free society remains so after a devastating attack on its democratic institutions — received so little attention three years after the Twin Towers and a fifth of the Pentagon were rendered into ash?

‘Not a Priority’

Simplest among the myriad reasons why Members have failed to act is this: Continuity of Congress has not been a priority.

In March 2002, six months after 9/11, a bipartisan group of lawmakers led by Rep. Brian Baird (D-Wash.) collected 200 signatures on a letter to House leaders calling for the creation of a bipartisan, bicameral panel to study the issue. That press conference marked the height of interest in the issue. And as interest faded, so did any semblance of comity.

The Senate never agreed to the panel, although the House proceeded with a unicameral version. That group dissolved at the end of the 107th Congress without delving into the more difficult constitutional changes that almost all outside experts believe are necessary.

But even as Baird presented his 200-signature letter, then-House Majority Whip Tom DeLay (R-Texas) signaled that the issue was not a high priority. In March 2002, he said the leadership had no intention of acting on something before the end of the session that fall. “I don’t think we’re planning on that. I am not focused on it,” he said.

Outside of a handful of lawmakers and a blue-ribbon panel of outside experts and former Members, virtually no one else has been focused on it either.

“The Congress’ natural instinct is to try to prevent these acts of terror, rather than deal with the consequences of it,” former Speaker Tom Foley (D-Wash.) said in an interview. “Not that we have a choice between them.”

Foley serves on the Continuity of Government Commission, a joint venture of the American Enterprise Institute and the Brookings Institution. After a year of study, the commission issued a report last year calling for an amendment to fix what it deemed a hole in the Constitution that can’t be patched by statute.

But if the House and Senate leadership have been less than ardent, all but a half-dozen lawmakers rank-and-file Members have ignored the issue too.

“You are not going to get Members interested in it on a wide scale until thoughtful people in their Congressional districts start talking about it,” said a House Democratic leadership aide.

“Are constituents concerned about the issue?” Assistant Senate Historian Don Ritchie asked rhetorically. “Continuity of government is probably not among the top 10. If it was, there would be a lot more consensus to do something.”

The media has been generally lackadaisical, too, observers note. Yet even after finding fault elsewhere, the vast majority of experts interviewed put the blame squarely on Congress.

“I think people would take this very seriously if the Congress would,” said George Washington University law professor Steve Charnovitz.

Where’s Hastert?

While Republicans such as Dreier and House Administration Chairman Bob Ney (Ohio) have repeatedly lauded Speaker Dennis Hastert’s (R-Ill.) leadership on institutional matters including continuity, other Members, staff and outside experts from both parties have scratched their heads looking for Hastert’s involvement.

“I blame the Speaker also,” Lofgren said. “The Speaker is obviously the leader of his party in the House, but he has an obligation not just to his party but also to his country. It would have been in keeping with that role to have stepped in and made something happen. I didn’t see him playing that role.”

Where Hastert’s absence has been most acutely felt, some say, is in dealing with Judiciary Chairman Jim Sensenbrenner (R-Wis.). Sensenbrenner steadfastly refused to hold a hearing in the 108th Congress on anything other than his bill to expedite special elections. He finally relented and held one hearing on Baird’s constitutional amendment, but critics, including some Republicans, viewed it as perfunctory.

“The Speaker hasn’t been willing to take on Sensenbrenner,” the Democratic aide said. “Sensenbrenner has just planted his feet in cement. Sensenbrenner has all but won this discussion by virtue of the fact that he had refused to hold a discussion.”

But Hastert’s spokesman, John Feehery, said the leadership is under no obligation to bring up legislation or amendments that they fundamentally disagree with.

“We’re not doing what they want to do, which is amend the Constitution to take away a fundamental tenet of the House” — that is, that it seats only elected Members, Feehery said earlier this year.

Rep. Steve Chabot (R-Ohio), who chairs the Judiciary subcommittee on the Constitution, said he believes Sensenbrenner has been exceedingly fair. Chabot also opposes any amendment that would allow for temporary House Members.

“The country is going to be under martial law until we have elections anyway. I disagree that you can’t get elections done in 45 days,” as the Sensenbrenner proposal requires, Chabot said.

For his part, Sensenbrenner said earlier this year that he is “puzzled and amused by all these calls for a hearing.” He maintains that the hearings his committee held on a constitutional amendment in the 107th Congress and this year made it “apparent to me that there was minimal support for temporary” House Members.

Still, the chasm seems to go beyond philosophical differences.

“I have talked to Members on the Republican side who have said they have been whipped on this issue,” Baird said. “It’s not just a difference of opinion. It’s a difference of power. [GOP leaders] are using their power to suppress debate.

“Many of them have spent less than a half an hour. I have spent hundreds of hours,” Baird continued. “You need Mr. Hastert to say to Members as a whole, ‘Take a day, set fundraising aside, to consider this.’”

GWU’s Charnovitz went even further.

“It seemed to me the opponents of the constitutional amendment were not taking the nightmare scenario that seriously,” Charnovitz said. “They were not coming up with something that would work instead. They were just saying no. You can’t admit and agree that it’s a problem and then say nothing that would dilute the House is acceptable.”

The House eventually held a vote on Baird’s amendment, allowing an hour of debate. Even Baird acknowledged that he didn’t have anywhere near the two-thirds majority needed.

Still, two Republicans who voted for Baird’s amendment backed his view that the GOP leadership made it a priority to ensure the measure met resounding defeat.

“I did get the impression … that a lot of folks on the Republican side handled it as a party-line vote. And I think that’s unfortunate,” said then-Rep. and now Sen.-elect David Vitter (R-La.). “I think a lot of people followed certain leadership without thinking about the issue.”

Rep. Mark Souder (R-Ind.) said he did not find “our side’s argument” that expedited elections are the only solution “particularly compelling.” He agreed that the “general feeling” was a vote against Baird’s resolution was important to the leadership.

“If the leadership [had] gotten to me, I might have voted the other way.”

But if the House leadership has been less than enthusiastic about encouraging rank-and-file Members to think through the complex issues involved and come to their own conclusions, the Senate leadership has been even quieter.

Led by Sen. John Cornyn (R-Texas), the Senate Judiciary subcommittee on the Constitution has held a series of hearings on continuity of government. Cornyn has drafted an amendment of his own that would allow the states to decide how they would replace lawmakers after a catastrophe.

While supporters of a constitutional amendment have met outright hostility in the House, Cornyn’s proposal has received little more than indifference from Senate leaders. Although Cornyn would likely have the votes in the full Judiciary panel to pass his resolution, it has spent months without being brought up.

“Because of other activity on the Judiciary Committee, we haven’t pushed this real hard,” Cornyn said. “We are inching forward. I think part of the problem with continuity is it does not have as much appeal from a political standpoint as some of the other [amendments] that have been considered. This is something we could do if we had the political will.”

But Members have not been eager to spend political capital on writing an institutional will.

“This is them confronting their own mortality,” Syracuse’s Kersh said. “No one likes to think about the world in their absence. Elected politicians, buoyed on a sea of adulation by their constituents, are even less likely.”

Must See TV

The apathy in Congress has been matched, if not exceeded, off Capitol Hill.

While a few dozen stories have appeared in newspapers across the country in the three years since Sept. 11, 2001, the coverage has hardly been detailed or sustained. Few articles have appeared outside the Beltway. Television coverage has been particularly sparse. According to the Continuity of Government Commission, the issue hasn’t been seen on the airwaves since 2002. None of the four major television networks has done a story on continuity of Congress.

Rep. Christopher Cox (R-Calif.), who co-chaired the House working group, said sardonically, “The TV networks would have to decide that continuity of government, after its decapitation by terrorists, was a topic worthy of sustained coverage. It would require walking and chewing gum at the same time.”

Even PBS’ Jim Lehrer, who regularly tackles complex, unsexy topics in an unhurried format, has eschewed the topic because it’s too complicated, Baird said. Another serious-minded show, ABC’s “Nightline,” also declined to do a story, said AEI’s Norman Ornstein, a senior counselor to the commission and a Roll Call contributing writer.

(Representatives from PBS and ABC did not return phone calls requesting comment.)

“The press … shows all of its weaknesses on this issue,” Ornstein said.

To get the public involved, “it’s got to be a daily story,” Ritchie said. “If the media’s not interested, it’s much harder to get the politicians interested.”

But Kersh suggested that the public may be more interested than many lawmakers suspect. His theory is undergirded by the large response to a Reader’s Digest mail-in survey on Congressional continuity in November 2002. More than 5,000 people clipped the questionnaire and provided their own stamps to register their opinions.

Of the respondents, 63 percent favored a constitutional amendment allowing governors to appoint temporary House Members. Expediting special elections alone without some sort of temporary lawmakers was not one of the choices, but of the 8 percent who responded with their own suggestions, 119 people felt the House should continue to function with its remaining Members until elections could be held.

“When it comes to constitutional amendments, it’s important for public opinion to lead,” Cox said. “It’s important for Congress to be an instrument of popular will.”

Lacking that, the gaps in Congress’ ability to function after a large-scale attack remain wide.

“It’s something we’ve got to do,” Senate Rules and Administration Chairman Trent Lott (R-Miss.) said recently of continuity. “We’re going to have a mess on our hands someday because we haven’t thought through the what-ifs.”