Preserving the continuity and integrity of free government
The terrorist attacks of Sept. 11, 2001 brought renewed focus to ensuring continuity of government in times of crisis. As chairmen of the House Judiciary and Rules committees, we held hearings to examine continuity measures and the legal, constitutional, and practical issues associated with their implementation.
In the years immediately following 9/11, the House debated and voted upon a constitutional amendment to allow for appointment of members of Congress in times of crisis. This was defeated by a margin of 63-353. By contrast, the House approved the “Continuity in Representation Act” by a broad bipartisan vote of 329-68, and it was subsequently enacted into law. The bill provides for expedited special elections in the event of mass deaths of U.S. Representatives.
Ensuring continuity in the event of mass incapacitation of U.S. representatives is also crucial. When U.S. representatives are injured and unable to vote, they are still counted for purposes of establishing a quorum. If more than a majority of members are incapacitated, a quorum cannot be obtained to conduct business. Utilizing its constitutional authority to establish its rules of procedure, House Rules were changed to permit — after actions taken by the Capitol Physician and Sergeant at Arms — a provisional quorum of a majority of members able to respond to numerous, multi-day quorum calls. This rule also permits the House to continue official proceedings following a mass incapacitation event.
Describing the unique character of the U.S. House of Representatives in Federalist Paper 52, James Madison, wrote: “[I]t is essential to liberty that the government in general should have a common interest with the people. . . . Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.” Madison also warned “[w]here elections end, tyranny begins.”
Unlike other branches, every U.S. representative in America’s history has been elected. This is true despite the War of 1812, the Spanish Flu pandemic, World Wars, and Cold War nuclear tensions. The nexus sustained by the direct election of U.S. representatives is a touchstone of free government.
The appointment of U.S. representatives would require constitutional amendment, a process the Founders wisely made difficult. Amending the “supreme law of the land” requires approval by 2/3 of both houses of Congress (or 2/3 of the states at a constitutional convention) and subsequent ratification by 3/4 of all states. These requirements make constitutional amendments rare, and render the prospects of appointing U.S. representatives remote.
Nevertheless, vocal proponents continue their efforts to discard the direct election of U.S. representatives. Their proposals fall into two broad categories: gubernatorial appointment of U.S. representatives, or the pre-selection of successors by members of Congress themselves. Both are fraught with defects that imperil the essence of free government and the principle of representative democracy the U.S. House uniquely reflects.
Gubernatorial appointment of U.S. representatives would invite partisan intrigue and legal challenge. Presently, Democrats hold a 12-seat majority in the U.S. House (221-209), among the most narrow of margins in recent history. Currently, 28 of 50 governor’s mansions are occupied by Republicans. If governors could appoint U.S. representatives, some might delay appointments while others expedite the process for partisan gain. This disparity would deny to citizens their constitutional rights to representation and the equal protection of the laws. The second general approach to jettisoning the direct election of U.S. representatives is more dubious than the first. These proposals would amend the Constitution to empower U.S. representatives to surreptitiously create a list of designated successor(s) to be appointed in the event of the elected representative’s death or incapacitation. Allowing members of Congress to choose their own successors invites opportunism and confers to a hand-picked designee the privilege of office and advantage of incumbency that must be earned from voters, not capriciously granted. Covert, dynastic succession of office is more emblematic of North Korea than the world’s greatest representative democracy.
We must remain alert to present and future threats, and take all necessary steps to ensure the operation of Congress in times of crisis. But these preparations must not compromise the representative spirit that animates the “People’s House.” We must ensure that future U.S. representatives maintain the cherished distinction of all their predecessors — direct election by the citizens they serve. We can prepare for the worst, while preserving what is best about representative self-government the U.S. House embodies.
Sensenbrenner served in Congress from 1979-2021. He served as chairman of the Judiciary Committee from 2001-2007. Dreier served in the House from 1981-2013. He served as chairman of the Rules Committee from 1999-2007 and from 2011-2013.