On Thursday, the House took laudable steps toward ensuring the continued functioning of the Legislative Branch if catastrophe strikes. However, the measure has significant shortfalls that must be addressed.
Continuity is an acute problem in Congress. Enemies of the state could shut down the government by killing or incapacitating large numbers of federal legislators. Incapacitating 50 or more members of the Senate is almost certain to stop that body from functioning for some time, perhaps up to four years, since the seats would not be vacant, but merely filled with individuals unable to act. House rules may permit legislative action by a quorum made of only a few individuals, but such measures would have highly questionable legitimacy.
There would be little time for debating continuity under such emergency conditions. Legislative speed was essential in the aftermath of September 11. As Texas Sen. John Cornyn has pointed out, within three days of those attacks, Congress had authorized the use of force, appropriated $40 billion in emergency recovery funds and approved legislation succoring the families of public safety personnel killed on duty that day.
Recognizing the need for quick legislative reconstruction, Mr. Cornyn has proposed legislation allowing states to select the best form of filling legislative seats should one-quarter of the members be killed or incapacitated. The appointments would last only until a special election, and temporarily incapacitated incumbents would be permitted to reclaim their seats.
In contrast, elections would not occur until 45 days after an attack under the bill that passed the House on Thursday under the sponsorship of Rep. James Sensenbrenner. After a debilitating attack on Congress, the speaker of the House would proclaim that 100 or more vacancies had occurred in the House, giving parties 10 days to nominate a candidate before special elections are held 45 days later. Such quick elections might be problematic in the aftermath of an attack, and the bill makes no provision for the incapacitation of members or even the speaker. It also leaves out representatives from the District of Columbia and the four territories, although D.C. Delegate Eleanor Holmes Norton said she has received assurances from Mr. Sensenbrenner that this oversight would be corrected in conference.
Backers of Mr. Sensenbrenner’s bill argue that the Constitution’s framers intended that the House be composed of only those elected by citizens. Advocates of other approaches argue that the legislature must not be out of business for long in a national emergency.
Whatever course they choose, legislators must give measures toward ensuring congressional continuity the same careful consideration that they do their own living wills. The measures that they decide upon should stand up to both the instance of disaster and the long wear of time and transition, and be built upon an apolitical foundation. A constitutional amendment may not be the most desirable course, but it may prove the most wise.
The House has done well to act on this matter, and the Senate should also do so.
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