- The Washington Times - Wednesday, November 12, 2003

Last week, as the president eloquently articulated a vision for expanding the institutions of freedom around the world, Congress grappled behind the scenes with how to preserve another citadel of democracy here at home: itself.

Addressing Armageddon scenarios isn’t easy for any institution. But for Congress, planning the aftermath of its own demise is the legislative equivalent of a root canal using congressional silverware. Yet who, when and how Congress chooses as its “replacements” is a key fiduciary responsibility, though one fraught with thorny constitutional problems. Lawmakers, however, should not allow differences about how to “continue Congress” to kill the process of putting such a plan in place.

Following September 11, many on Capitol Hill and outside observers concluded the mechanisms for ensuring the continuity of Congress in the event of a terrorist attack were lacking. Texas Sen. John Cornyn last week said, “The current system of providing for the continuity of government is completely inadequate in the reality of the post-September 11 world.” He’s right. Yet significant differences exist among lawmakers about how to address these shortcomings.

Some believe an amendment to the Constitution is necessary. This approach authorizes states to develop temporary mechanismstoselectcongressional replacements. Last week, Mr. Cornyn introduced a measure allowing states to choose among a number of methods, including special elections, interim appointments by the governor or state legislature,and emergency interim appointments pursuant to a list of successors created by incumbent members of Congress. A constitutional amendment is necessary if members are selected in any manner other than election, because the Constitution clearly states that House members shall be “elected by the people.” No person has ever served in the House without being elected.

This “election prerequisite” is the core principle underlying the other school of thought that rejects the possibility of “selected” replacements and instead contemplates a new federal law requiring expedited “mass vacancies special elections.”

Both approaches share the same goal. Yet, the constitutional amendment approach is generating a significant amount of opposition among senior House members, which will doom its prospects of passage. These lawmakers argue that tradition, time and technicalities undermine this idea.

In their view, a constitutional amendment violates more than 200 years of American political tradition. As Rep. David Dreier said, the Constitution requires the House “be composed of Members CHOSEN every second year BY THE PEOPLE of several states [emphasis added]. Many of us here in the House take great pride in the fact that every member of the body has always been elected. Importantly, there have been no exceptions to that rule.”

Time is another consideration. Given the opposition to the amendment from key members of the House like Rules Committee Chairman Dreier and House Judiciary Chairman James Sensenbrenner, garnering the votes for passage, as well as the uncertainty of the state ratification process, means this alternative may never get enacted.

Technicalities are perhaps the most troubling aspect of the amendment option. One House staffer said adopting the amendment approach means those remaining members could “repeal any implementing legislation previously enacted and pass legislation that would immediately install only persons of their choosing.” This, critics say, creates a “worm or virus” on the Constitution, in that Congress, by law, could adjust qualifications, quorum requirements and other provisions that may undermine constitutional standards. “Asking the states to ratify such an open-ended approach is like selling them a pig in a poke,” one senior House aide said.

Grappling with replacement plans aimed at the aftermath of catastrophic attacks is not new. The Senate passed constitutional amendments three times during the Cold War (1954, 1955 and 1960), laying out replacement plans following a possible Soviet nuclear attack on the Capitol. Then, like now, the House balked at violating its tradition of elected members.

Despite these differences, Congress could take steps to plan for its continuity short of pursuing a constitutional amendment. The House will likely never support a plan for non-elected replacements, so pursuing that path may waste precious time. Yet, Congress could begin putting plans in place to promote expedited elections by law and coordinate with the Senate on issues like emergency funding, how to transmit legislation to the president and other operational measures should normal business in Washington cease. This approach may not address all what-if scenarios, but neither does a constitutional amendment.

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