110th Congress Dropped the Ball on Continuity Issues

Posted July 29, 2008 at 4:50pm

Another “broken record” column. Congress is poised to leave for August, satisfied that it has passed or will pass what it needs to pass. That may be true in terms of making it through the summer intact. But there are other pressing areas that remain wholly untouched and are unlikely to see any focus at all during the compressed and frenzied session in September. One of them is the continuity of our governing institutions in the event of another terrorist attack on Washington.

[IMGCAP(1)]This ought to be an issue of deep concern, if not urgency. Within a couple of weeks of the opening of the 111th Congress in January, we will gather for the inauguration of the 44th president of the United States. There is no time more vulnerable for the country than the inaugural. On a stage at the Capitol are the incoming president and vice president, the outgoing president and vice president, the Supreme Court, all Congressional leaders, most of the House and Senate, and the incoming members of the Cabinet, none of whom have been sworn in. All the outgoing Cabinet members have presumably filed letters of resignation as of noon on Jan. 20, the moment when a new president is sworn in.

If something happened at the inaugural, say a suitcase nuclear bomb were set off, we would have the ultimate nightmare: Everyone in the line of succession for the presidency gone, and no clear and definitive sense of who would step up to be in charge, a Congress left without leadership or the quorum required to do official business, and no Supreme Court.

In the fog of war, no doubt many people — generals, surviving Members of Congress trying to be elected Speaker (quorum requirement or not) and therefore assume the presidency under the 1947 Presidential Succession Act, former Cabinet members who say they forgot to file their letters of resignation, and so on — would jump up to say they are in charge. And no doubt a dozen federal courts of appeals would each be poised to adjudicate the complex or fuzzy constitutional issues of who would be the rightful claimant, with no clear way of choosing one among them to do so. All of this coming at the most catastrophic moment imaginable.

We have had nearly seven years since 9/11 to think about the unthinkable and work out insurance plans for the country. The result is … nothing that is either workable or constructive. On the matter of the inaugural, there is obviously no time to do major surgery here. But at minimum, Congress should be doing a few small things to provide some backup. One is to work out an agreement between the Senate and the outgoing president that would have one or two outgoing Cabinet members resign on Jan. 19, or as of 9 a.m. on the 20th, with President Bush then formally nominating and the Senate confirming the choices of the incoming president by going into session that morning. These new Cabinet members could then leave Washington so that someone clearly in line for the presidency under the law would be ready and safe.

That is one small and simple step. But other things really need to be done before this Congress leaves for good. Previous Congresses did worse than simply dropping the ball on continuity — at the urging of then-Speaker Dennis Hastert (R-Ill.) and then- Judiciary Chairman Jim Sensenbrenner (R-Wis.), they actually adopted a clearly unconstitutional House rule that unilaterally erases the clear constitutional requirement of a majority of Members to make a quorum for official business by giving the Speaker almost unilateral power to reduce that number in the event of a catastrophe.

A reduced quorum after a catastrophe may or may not be a good idea — it does get a Congress up and running with only a handful of Members, but it also means a very unrepresentative Congress making major decisions. But if it is a good idea, it has to be done the right way, by changing the unambiguous language of the Constitution. Democratic leaders inexplicably did not eliminate this pernicious rule at the beginning of the 110th Congress. They need to do the right thing, preparing now to change it when they craft their rules package for the beginning of the 111th.

It is frankly sad, even pathetic, that asking for these very small things is all one can hope for at this point. Osama bin Laden is still at large; al-Qaida is alive and well as an organization, regrouping and adding strength in Pakistan and Afghanistan; many evil people in the world still wake up every morning trying to find creative ways to kill more of us; and the Capitol remains at the top of their list of unfinished business.

We have no plan in place to reconstitute Congress quickly if another attack succeeds in killing or incapacitating large numbers of lawmakers; no effective presidential succession process to deal with the threats of the 21st century; no plan at all to have the Supreme Court ready if there are questions of who will occupy the top offices and make decisions of war and peace, among others.

Smart people inside Congress such as Rep. Brian Baird (D-Wash.) and Sens. John Cornyn (R-Texas) and Russ Feingold (D-Wis.) have understood the problems and looked for solutions. So have smart people outside Congress, such as former Sen. Alan Simpson (R-Wyo.), former Rep. Martin Frost (D-Texas), former diplomat Max Kampelman, defense policy expert Fred Ikle, 9/11 commission member Jamie Gorelick and the late Lloyd Cutler, White House counsel under Jimmy Carter and Bill Clinton. Democrats and Republicans, liberals and conservatives, they share the knowledge that the clock is ticking.

Was it asking too much for the 110th Congress at least to hold hearings on Congressional continuity, presidential succession and Supreme Court succession? Apparently so.

Norman Ornstein is a resident scholar at the American Enterprise Institute.