Names can be deceiving. Take for example, the Continuity of Representation Act of 2005, which passed the House last week.
The title suggests that the bill provides for the continuity of Congress after a catastrophic terrorist attack. Sadly, it does nothing of the sort.
Proponents and opponents of the bill agree on the problem to be solved: On Sept. 11, United Flight 93 was headed for the U.S. Capitol and stopped only by the brave actions of its passengers who stormed the cockpit. Terrorists not only targeted lives and property but also our political leaders, no doubt in hope that they might decapitate the government, sow confusion and prevent a vigorous response to their attacks.
For constitutional reasons, it would be difficult for Congress to reconstitute itself after a catastrophic attack. The Constitution provides that the only way to fill vacancies in the House is by special elections, which take on average four months to conduct.
If 400 members of the House were killed, those seats would likely remain vacant for months, leaving Congress crippled or unable to meet its quorum requirement.
The Senate would be better off because, under the 17th Amendment, most states have authorized their governors to make temporary appointments to fill the vacancies immediately and then hold a special election.
What would happen if many senators and representatives were seriously injured — temporarily incapacitated, say, by an anthrax attack or in burn units? There is no process by which elections in the House or appointments in the Senate could go forward until the seats became vacant.
Some would say: “So what if there were no Congress for months after an attack?” But think of how productive Congress has been since Sept. 11. Or think of the alternative, a president, perhaps a successor president, with no check on his powers.
There are two fundamentally different approaches to solving this problem. The approach of the Continuity of Government Commission and a number of proposals in the House and Senate would amend the Constitution to provide for appointment of temporary representatives (by governors or other methods) to fill vacant seats immediately and to serve until special elections could be held. Temporary members would also be appointed to serve in place of incapacitated members until they recovered or their seats are vacated and filled by special election. Congress would be at nearly full membership within days of an attack, not months.
The bill passed by the House last week takes a different approach, requiring states to hold special elections within 49 days if 100 members or more are killed or incapacitated. The 49-day period is both too short and too long: too short because the vast majority of states would not be able to meet that deadline in normal times, never mind the trying period after an attack, too long because 49 days without a Congress means no check on the president. Remember that the president after a big attack might be an obscure Cabinet member, not the elected president.
This bill is meant to accompany a very disturbing rules change made quietly at the beginning of the 109th Congress that condones the House’s operating with just a handful of members.
The Founding Fathers did not want a small portion of the Congress to act in the absence of representatives from most of the country, so they put a quorum requirement in the Constitution that the Senate and House have a majority of their members to conduct business.
In January, the House changed its rules to allow deceased and incapacitated members not to be counted as part of the quorum calculation. To give an example, if 430 members of the House were killed or incapacitated, then as long as three of the remaining five members showed up the House could operate.
Imagine a House with representatives from less than 1 percent of the people proceeding with business. Or imagine the worst-case scenario where the president, vice president and congressional leaders have been killed. Current law allows those three members of the House to elect a Speaker of the House who will become president of the United States for the remainder of the term.
If the House were merely encouraging a modest expediting of elections that would accompany temporary appointments, this would be a reasonable course of action. But the House views these elections as an alternative to appointments. The result: months with large numbers of vacancies in Congress, an illegitimate Congress of a small number and no effective check on the executive in a time of national crisis — all in the name of continuity.
Shakespeare’s Juliet asked, “What is in a name? … A rose by any other name would smell as sweet.” The Continuity of Representation Act is no rose, and sweetness is not the odor it emits.
Fortier is a research fellow and executive director of the Continuity of Government Commission at the American Enterprise Institute.