CQ’s Rob Margetta posted a story last night, “Panel Worries Congress Isn’t Ready for Worst,” that reminds us of the “what ifs” of 9/11 – what if the Capitol and White House had been successfully hit? What if that or another event was so catastrophic that it caused mass casualties among our political leadership? What if there were few to none left in Congress to legislate after such an event?
Margetta profiles the Continuity of Government Commission, formed in 2003, by the American Enterprise Institute (AEI) and the Brookings Institute, which has “pushed for years for a constitutional amendment that would allow emergency interim appointments to replace members of Congress who are casualties of a catastrophic emergency.”
The Commission, co-chaired by former Senators Alan Simpson and David Pryor, issued its second report earlier this summer, which concluded that our nation’s current legal and constitutional framework is not well-suited for resisting a catastrophic attack on our nation’s Capitol. As Margetta notes, the Commission gathered “in a largely empty conference room” this week to continue it push “for a constitutional amendment that would allow emergency interim appointments to replace members of Congress who are casualties of a catastrophic emergency.”
Currently, existing law does not readily allow such action as the Constitution provides that governors whose states have Congressional vacancies shall call for elections to fill such vacancies or, in the case of the Senate, may temporarily appoint persons, if state law allows. Under this provision, House Members cannot be appointed, even temporarily. As a result, in the event of a catastrophe, some states that have longer time-frames for calling and hold elections, could be left without representation.
To be fair, Congress has taken some action to deal with catastrophic circumstances debilitating its bodies. House Rule XX contains a requirement that if the “House shall be without a quorum due to catastrophic circumstances,” then quorum shall be determined based upon the provisional number of the House. This “provisional number” shall be the number of Members who are able to respond.
That said, while the House may be “operational” in the very basic sense of the word, its legitimacy and functionality could easily be called into question, especially if controversial measures are undertaken. AEI’s Norm Ornstein, who played a critical role in putting together the Commission, has written extensively on this issue. As he noted in Roll Call column on October 4, 2001 in an article entitled, “What If Congress Were Obliterated? Good Question:“
Even if it could convene, for Congress to operate under those circumstances for long–passing sweeping anti-terrorist laws, emergency appropriations and economic recovery measures–would tax its legitimacy, particularly if there were much greater partisan and regional differences among the surviving (and ambulatory) lawmakers than existed in the full House.
Imagine the uproar if the USA Patriot Act were passed today with 15 votes. What if economic recovery funding were determined by a handful of Members concentrated in one region?
A handful of proposals have floated around since 9/11 to overcome these potential issues. Most of these were last seriously considered in 2003. The House, after rejecting a proposed constitutional amendment, actually approved legislation (H.R. 2844) that would require states to hold special elections within 45 days after the announcement of vacancies resulting from a catastrophe. The Senate, however, did not take up the House bill or move any of the bills introduced in the Senate on the issue.
Eight years after 9/11, we’ve failed to address effectively one of the most devastating gaps in our nation’s security. There is no question it is a wonkish and inside the beltway issue to many, especially when compared with first responder funding, security at our airports, and threats to our computer networks. It is, however, one of the most local issues out there on the homeland front, as residents of almost every district of the House would not want to be without their voice should an incident occur.
Our nation has been fortunate enough (or prepared, depending on who you ask) to have not been successfully attacked again. It would serve the U.S. government and citizens well for there to be renewed dialogue on the issues that the Commission is calling to be addressed.