- The Washington Times - Monday, January 26, 2004

Today, the Senate Judiciary Committee is expected to take up the critical problem of ensuring the continuity of Congress in the event of a catastrophic terrorist strike. Provisions for such a possibility should be made lest an attack paralyze the government and impugn its legitimacy.

Currently, Senate vacancies may be filled by gubernatorial appointment, but House seats may only be filled by special elections, which may take months. The Constitution has no provision for incapacitated members of either chamber.

However, quick congressional action may be critical in dealing with the after effects of another large-scale terrorist attack. Within a week of September 11, Congress had authorized the use of force and appropriated billions for recovery. Doing so again would be highly problematic with a majority of legislators missing or killed. House rules seem to permit legislative action by a quorum consisting of only a few individuals, but measures authorized by a fraction of members would have a questionable legitimacy. In the absence of a functioning legislature, the executive would have little recourse but to rule by the extra-constitutional device of emergency decree.

Two different bills have been offered as potential remedies. Sen. John Cornyn’s measure, the Continuity of Congress Act, puts a premium on filling congressional seats as soon as possible. It would empower state legislatures to choose the mechanism of filling vacancies if one-quarter of the members of either the House or Senate were killed or incapacitated. Legislatures might fill seats by gubernatorial appointment or from a list of successors named by the incumbent. Regardless of the mechanism used, the appointments would only last until a special election. Mr. Cornyn’s bill also allows temporarily incapacitated incumbents to reclaim their seats. It would require a constitutional amendment for enactment.

Rep. James Sensenbrenner’s bill, the Continuity in Representation Act, gives greatest priority to representatives remaining elected. If there are 100 or more vacancies in the House, the bill would require political parties to choose candidates within 10 days and require special elections within 45 days. It does not directly address the issue of incapacity and would not require a constitutional amendment to enact.

There is strong historical resonance in the argument for allowing only elected representatives into the House. However, Mr. Sensenbrenner’s bill has a steep hill of persuasion to overcome, since it is not clear that elections could be held within the time mandated by the legislation, particularly in the context of a catastrophic attack. That said, amendments should not be added to the Constitution lightly, and Mr. Cornyn’s bill could easily die in the ratification process. Having no provision for the continuity of Congress would be even worse than having a problematic one.

Both bills need additional vetting. In particular, backers of the House bill need to prove that their measure is sufficient to meet the concerns raised by supporters of the Senate legislation. Few individuals like to think about their demise, but legislators have the duty to enact a living will that will ensure the continuity and legitimacy of the legislative branch.

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