A death in office could flip control of government. It doesn’t have to

Three key reforms can help voters maintain their faith in democracy, even in this hyperpartisan era

People for and against the confirmation of Amy Coney Barrett face off outside the Supreme Court on Oct. 26. Clashes like this one could be avoided if we set a latest date in a presidential election year for when a president can fill a high court vacancy, Diller writes.  (Caroline Brehman/CQ Roll Call file photo)
People for and against the confirmation of Amy Coney Barrett face off outside the Supreme Court on Oct. 26. Clashes like this one could be avoided if we set a latest date in a presidential election year for when a president can fill a high court vacancy, Diller writes. (Caroline Brehman/CQ Roll Call file photo)
Posted March 29, 2021 at 6:00am

An essential feature of democracy is that it does not depend solely on the beating of a human heart. Presidents, members of Congress and Supreme Court justices do sometimes die in office. But laws can provide for the filling of vacancies in ways that prevent the power struggles and instability that frequently afflict non-democracies when a leader dies. 

Unfortunately, U.S. laws related to vacancies fail to account for a number of dark possibilities, which combined with our hyperpartisan politics create dangerous incentives for violence and the risk of public upheaval. 

Consider what we have witnessed in the last year:

  • The presidency has been occupied consecutively by two septuagenarians.
  • A sitting president was hospitalized with a potentially deadly disease.
  • Cases of that contagious disease reached into the staffs of both the president and vice president.
  • A politically motivated kidnapping conspiracy against a sitting governor was thwarted.
  • A Supreme Court justice died less than two months before an election.
  • Senate elections resulted in a 50-50 tied chamber.
  • A mob, some of whom would have attacked elected officials if given the opportunity, breached the Capitol.
  • The FBI issued dire warnings about domestic terror groups.

These events should serve as warnings that we need to fortify our democracy against the prospect that an assassin’s bullet, an encounter with microbes or even a natural death could flip control of our government.

Here are three key reforms that would help us do that:

Amend the Presidential Succession Act

The Presidential Succession Act should be amended to take the speaker and the president pro tempore out of the line of succession. When the opposition party holds these two offices, only two deaths are required to shift party control of the presidency. 

Imagine the instability that might result from an assassination that caused the transfer of presidential power to a rival party. Such an event would undercut the will of voters, whipsaw government policies and propagate destructive conspiracy theories for a generation. 

There is no imperative to keep members of Congress in the line of presidential succession. Indeed, between 1886 and 1947 they were not. At President Harry Truman’s urging in 1947, Congress inserted the speaker and the president pro tem as the next in line after the vice president. 

But today, the dangers to government continuity and public order of shifting presidential control to the other party far outweigh Truman’s personal preference for having congressional officials ranked over the secretaries of State and Treasury. Modern speakers, regardless of party, play a highly partisan role. Few offices are less well suited to unifying the country in a succession crisis. 

Since Democrats now hold all the offices in line for the presidency, there is no immediate political disadvantage to either party in making this change. 

Supreme Court vacancies need a deadline

We should establish a latest date in a presidential election year when a president can fill a Supreme Court vacancy. Does anybody doubt that if a Supreme Court justice died in November or December, a defeated incumbent would push through a nominee if their party controlled the Senate? The demand for such a precipitous action from either side’s base would be irresistible.

But a power play in which a defeated or retiring incumbent nominates a Supreme Court justice in the face of a president-elect would further damage the political fabric of the country. 

Democrats may not agree to a change in the short term because they control the presidency, so an effective date might have to be set a few cycles in the future, perhaps 2032. 

The details are negotiable, but a narrow constitutional amendment requiring that any Supreme Court vacancy occurring later than sixty days before a presidential election could not be filled until after the next inauguration would eliminate this potential flashpoint.

No party flips for Senate vacancies 

We should enact state laws that require governors to fill Senate vacancies with members of the same party that held the vacant seat. Only six states currently have such laws. This reform may be resisted in states where one party believes they have a stranglehold on the governorship.

But consider that today a single assassination or COVID-19 death could flip the Senate. Members of Congress do not have the security that presidents or even governors have. Allowing congressional continuity and the voters’ will to be overturned by a death is an invitation to politically motivated violence.

Such a reform would also mean that ethically disgraced members, who should resign or be expelled, would be less likely to be protected by their party.

Advocates of these proposals should pose a simple question to their doubting colleagues: “Do you believe that the shape of government that was configured by voters should be undone by the death of an office holder.” 

If the answer is no, the course should be clear.

Dan Diller is the policy director of The Lugar Center, a think tank founded by the late Indiana Sen. Richard G. Lugar that focuses on bipartisan governance.