THE CONGRESS

THE FIRST REPORT OF THE CONTINUITY OF GOVERNMENT COMMISSION

Preserving Our Institutions

Preserving Our Institutions

THE FIRST REPORT OF THE CONTINUITY OF GOVERNMENT COMMISSION

MAY 2003

THE CONTINUITY OF CONGRESS

Continuity ofGovernment

Commission

The Continuity of Government Commission is deeply dedicated to ensuring that our three branchesof government would be able to function after a catastrophic attack that killed or incapacitated largenumbers of our legislators, executive branch officials, or judges. It was, of course, the attacks ofSeptember 11th that prodded us to consider how an attack on our leaders and institutions mightdebilitate our country just at the very time strong leadership and legitimate institutions were mostneeded. In the aftermath of September 11th, our nation was able to call on the statesmanship andresolve of public officials operating through normal constitutional channels. If the attack had beenmore horrible, we might not have been able to respond so effectively.

Our first report—Preserving Our Institutions: The Continuity of Congress—addresses the continu-ity of our first branch of government. The commission will issue subsequent reports on the continuityof the presidency and the Supreme Court. We chose to begin with Congress because it is the insti-tution least able to reconstitute itself after a catastrophic attack. While some protections exist forreconstituting the presidency pursuant to the Presidential Succession Act, under our current con-stitutional framework, Congress would have a far more difficult time filling large numbers of its ownvacancies after an attack. It might not function well or at all for many months. Ensuring the conti-nuity of Congress is now a more pressing need than at any previous time in our history. Accordingto two of the 9/11 plotters, the fourth plane that crashed in Pennsylvania was headed for the Capitol,and it is entirely conceivable that Congress will again be a target.

To understand the threat to Congress and consider proposed solutions, our commission has held twoall-day hearings. We have consulted with current and former members of Congress as well as withlegal, constitutional, and institutional scholars. We have also received testimony and counsel fromother former public officials and many private citizens who are concerned about the vulnerability ofCongress and who have made thoughtful proposals to ensure its continuity. All of the testimony,proposals, and background information, as well as this report, can be found on our website atwww.continuityofgovernment.org.

It is surely not pleasant to contemplate the possibility of future catastrophic attacks on our govern-mental institutions, but the continuity of our government requires us to face this dire danger directly.We hope and pray that no such attack occurs, but it would be a derogation of civic duty and whollyirresponsible not to prepare now for such a contingency.

Sincerely and Respectfully Submitted,

Lloyd Cutler Alan SimpsonCo-chairman Co-chairman

Continuity ofGovernment

Commissionwww.continuityofgovernment.org

An American Enterprise Institute and Brookings Institution ProjectContinuity of Government Commission

American Enterprise Institute 1150 Seventeenth Street, NW Washington, DC 20036 Phone: 202.862.7164 Fax: 202.862.5821 Email: Continuity@aei.org

The Congress iii

The commission is funded by the CarnegieCorporation of New York, the William and FloraHewlett Foundation, the John D. and CatherineT. MacArthur Foundation and the David andLucille Packard Foundation. We thank theseinstitutions for their commitment to the publicgood at a time of great national trepidation.

AEI and Brookings, their staff, and their presi-dents Christopher DeMuth and Strobe Talbott,have steadfastly supported the commission.Before the formal creation of the commission,AEI and Brookings hosted a series of informaldiscussions on these issues, and receivedinsightful comments from Walter Berns, BillClinger, Robert Dove, Robert Goldwin, Richard

Hertling, Daniel Meyer, Eric Peterson, and SulaRichardson. Michael Davidson, Alton Frye,Michael Glennon, and Don Wolfensberger par-ticipated in these discussions as well, and con-tributed much more. They drafted proposals,presented testimony, and critiqued much of thecommission’s work. Bill Frenzel participated inan early forum on the continuity of Congress andprovided us with thoughtful comments. RandyMoss testified before our commission and was asource of wisdom on many of the difficult legaland constitutional issues in this report.

The commission’s work was greatly strengthenedby parallel efforts on Capitol Hill. At the sametime Norm Ornstein was writing about the conti-

acknowledgments

This Commission is a joint project of the American EnterpriseInstitute (AEI) and the Brookings Institution. The first to identify andpursue these issues was our senior counselor, Norman Ornstein of AEI, whoalerted the world to the vulnerability of Congress just two weeks after September 11th with a piece in Roll Call. Our other senior counselor, Thomas Mann of Brookings,and our executive director, John Fortier of AEI, became engaged in the issue at an early stageand along with Ornstein researched and wrote about continuity of government issues and wereinvolved in the founding of the commission. The commission would not have functioned smoothlywithout our assistant director Caroline Rieger, who oversaw the day-to-day operations. KimberlySpears, our research assistant, investigated a wide range of topics and was integrally involved in theediting of this report.

Preserving Our Institutionsiv

nuity of Congress in the days just after September11th, Congressman Brian Baird (D-WA) identi-fied the issue and began drafting a solution. Heintroduced a constitutional amendment to allowgovernors to make temporary appointments to fillmass vacancies in the House. His persistent workon the issue generated further congressionalinterest. The Subcommittee on the Constitution ofthe House Judiciary Committee, under chairmanSteve Chabot (R-OH) and ranking member JerryNadler (D-NY), held a hearing on the issue. TheHouse Administration Committee and its chair-man Bob Ney (R-OH) and ranking member StenyHoyer (D-MD) held a hearing on how Congresswould communicate and reconstitute itself afteran attack. Bills to amend the Constitution wereintroduced by Senator Arlen Specter (R-PA) andRepresentative Zoe Lofgren (D-CA).

In the spring of 2002, the majority and minor-ity leadership of the House of Representativescreated a bipartisan working group to address

continuity issues. Christopher Cox (R-CA) andMartin Frost (D-TX) chaired the effort. Theworking group held a series of weighty publicand private hearings that addressed manyaspects of the problem. They have issued ini-tial recommendations and facilitated helpfulHouse rules changes. We look forward to addi-tional findings from the group.

Several members also testified before our com-mission at our first hearing: Cox, Baird, and VicSnyder (D-AR). Representative James Langevin(D-RI) has identified how technology might aidCongress in communicating and functioning afteran attack, and he testified at our second hearing.

The many individuals who contributed to thework of this commission have shared with us avariety of views, but it has been clear that theyagree on the pressing need to strengthenCongress and ensure its continuity, even orespecially, under the most grim circumstances.

The Congress v

Honorary Co-Chairmen

President Jimmy CarterPresident Gerald R. Ford

Co-Chairmen

Lloyd Cutler is senior counsel and foundingpartner of Wilmer, Cutler & Pickering. He servedas counsel to Presidents Jimmy Carter and BillClinton. Cutler also served as special counsel tothe president on ratification of the Salt II Treaty(1970-1980); President’s special representativefor maritime resource and boundary negotiationswith Canada (1977-1979); and senior consultantof the President’s Commission on StrategicForces (Scowcroft Commission, 1983-1984).Cutler founded and co-chaired the Lawyers’Committee on Civil Rights Under Law. He hasserved as chairman of the board of the SalzburgSeminar; co-chairman of the Committee on theConstitutional System; a member of the Councilof the American Law Institute; a trustee emeritusof the Brookings Institution; and an honorarybencher of the Middle Temple.

Alan K. Simpson served in the United StatesSenate from 1978 to 1997, acting as MinorityWhip for ten of those years. He was an active force

on the Judiciary Committee, Finance Committee,Environment and Public Works Committee, anda Special Committee on Aging. He also servedas chair of the Veteran Affairs Committee. He iscurrently a visiting lecturer at the University ofWyoming. Before his election to the Senate,Simpson served as Majority Whip and laterMajority Floor Leader in the Wyoming House ofRepresentatives. In 1977 he became Speaker ofthe Wyoming House of Representatives. Simpsonserved as director of the Institute of Politics atHarvard University’s John F. Kennedy School ofGovernment from 1998 to 2000.

Commission Members

Philip Chase Bobbitt is the A.W. WalkerCentennial Chair in Law at the University ofTexas School of Law. Bobbitt has served asAssociate Counsel to the President, theCounselor on International Law at the StateDepartment, Legal Counsel to the Senate Iran-Contra Committee, Director for Intelligence,Senior Director for Critical Infrastructure andSenior Director for Strategic Planning at theNational Security Council. He serves on theEditorial Board of Johns Hopkins University’sBioterrorism and Biosecurity: BiodefenseStrategy, Practice, and Science, as well as the

Commissioner Biographies

Preserving Our Institutionsvi

Advisory Board for Texas Tech’s Center forBiodefense, Law, and Public Policy. Bobbitt is aformer member of the Oxford University ModernHistory Faculty and the War Studies Departmentof Kings College, London.

Kenneth M. Duberstein served as PresidentRonald Reagan’s Chief of Staff in 1988 and 1989,following his previous service as Deputy Chief ofStaff. From 1981 to 1983 he served as both anAssistant and Deputy Assistant to the Presidentfor Legislative Affairs. His earlier governmentservice included Deputy Under Secretary ofLabor during the Ford Administration andDirector of Congressional and IntergovernmentalAffairs at the U.S. General Services Administra-tion. He serves on the boards of several corporateand nonprofit organizations, including the BoeingCompany, Fannie Mae, Kennedy Center for thePerforming Arts as Vice Chairman, the Council onForeign Relations, the Brookings Institution, andothers. He is currently Chairman and ChiefExecutive Officer of the Duberstein Group.

Thomas Foley is a partner at Akin, Gump,Strauss, Hauer, & Feld, LLP. Ambassador Foleyis currently the chairman of the TrilateralCommission. He served as the twenty-fifth U.S.ambassador to Japan from 1997 to 2001. Beforetaking up his diplomatic post, Foley served asthe forty-ninth Speaker of the House ofRepresentatives. He was elected to represent thestate of Washington’s fifth congressional districtfifteen times, serving his constituents fromJanuary 1965 to December 1994. Foley servedas Majority Leader from 1987 until his electionas Speaker in 1989. From 1981 to 1987 heserved as Majority Whip. Foley is currently amember of the Council on Foreign Relations.Before his appointment as ambassador, he

served as chairman of the President’s ForeignIntelligence Advisory Board.

Charles Fried is Professor of Law at HarvardLaw School, where he has taught since 1961.From 1985 to 1989 he was Solicitor General ofthe United States and from 1995 to 1999 he wasan Associate Justice of the Supreme JudicialCourt of Massachusetts. He has taught courseson appellate advocacy, commercial law, constitu-tional law, contracts, criminal law, federal courts,labor law, torts, legal philosophy, and medicalethics. His major works include Order and Law:Arguing the Reagan Revolution (which hasappeared in over a dozen collections); Contractas Promise: A Theory of Contractual Obligation;and An Anatomy of Values. He is a member of theNational Academy of Sciences Institute ofMedicine, the American Academy of Arts andSciences, and the American Law Institute.

Newt Gingrich is a senior fellow at AEI and avisiting fellow at the Hoover Institution atStanford University. He was named a distin-guished visiting scholar at the National DefenseUniversity in 2001. He is also the chief execu-tive officer of the Gingrich Group, an Atlanta-based consulting firm, and a politicalcommentator and analyst for the Fox NewsChannel. Gingrich serves on the Board ofDirectors of the Juvenile Diabetes ResearchFoundation and the Wildlife ConservationSociety and is a member of the Secretary ofDefense’s National Security Study Group. Amember of Congress for twenty years andSpeaker of the House from 1995 to 1999,Gingrich is credited as being the chief architectof the Contract with America, which led to the1994 Republican congressional victory and thefirst GOP majority in forty years.

The Congress vii

Jamie S. Gorelick is Vice Chair of FannieMae, which she joined in May 1997. Beforejoining Fannie Mae, Gorelick was DeputyAttorney General of the United States, a positionshe assumed in March 1994. From May 1993until she joined the Justice Department,Gorelick served as General Counsel of theDepartment of Defense. From 1979 to 1980 shewas Assistant to the Secretary and Counselor tothe Deputy Secretary of Energy. In the privatesector, from 1975 to 1979 and again from 1980to 1993, Gorelick was a litigator in Washington,D.C. She served as President of the District ofColumbia Bar from 1992 to 1993. She is amember of the Council on Foreign Relations andthe American Law Institute. Gorelick currentlyserves on the Central Intelligence Agency’sNational Security Advisory Panel, as well as thePresident’s Review of Intelligence.

Nicholas deB. Katzenbach served first asdeputy U.S. Attorney General under PresidentJohn F. Kennedy, then, under President LyndonB. Johnson, as U.S. Attorney General (1964-66).In the Johnson Administration he also served asUnder Secretary of State. Following his govern-ment service, Katzenbach served as Senior VicePresident and General Counsel of IBMCorporation. He left IBM in 1986 to become apartner in Riker, Danzig, Scherer, Highland &Perretti until 1994. He practiced law in NewJersey and New York and taught law first at YaleLaw School and then at the University ofChicago Law School. He has published (withMorton A. Kaplan) The Political Foundations ofInternational Law (1961), as well as many arti-cles for professional journals.

Robert A. Katzmann* is a United StatesCircuit Judge for the U.S. Court of Appeals for

the Second Circuit. He is a political scientistand lawyer by training. After clerking on theU.S. Court of Appeals for the First Circuit, hejoined the Brookings Institution GovernmentalStudies Program where he was a fellow andacting program director. He was the WalshProfessor of Government, Professor of Law, andProfessor of Public Policy at GeorgetownUniversity; served as a public member of theAdministrative Conference and as a director ofthe American Judicature Society; and was ViceChair of the Committee on GovernmentOrganization and Separation of Powers of theABA Section on Administrative Law. He servedas special counsel to Senator Daniel PatrickMoynihan on the confirmation of Justice RuthBader Ginsburg. His many writings includeCourts and Congress (1997). He is a founder ofthe Governance Institute.

Lynn Martin is chair of Deloitte & Touche’sCouncil on the Advancement of Women and isan adviser to the accounting firm. She was theSecretary of Labor under President George H.W. Bush. Before serving as Secretary of Labor,she represented the sixteenth congressional dis-trict of Illinois in the U.S. House ofRepresentatives from 1981 to 1991. She was thefirst woman to achieve an elective leadershippost when she was chosen as Vice Chair of theHouse Republican Conference, a position sheheld for four years. During her ten-year tenure,Martin served on the House Rules Committee,the House Armed Services Committee, theHouse Budget Committee, the Committee onPublic Works and Transportation, and theCommittee on the District of Columbia.

Kweisi Mfume is President and CEO of theNAACP. He served as a U.S. Representative to

* Participating as a commissioner on matters relating to the judiciary only

Preserving Our Institutionsviii

Maryland’s seventh congressional district for tenyears. As a member of Congress, Mfume sat onthe Banking and Financial Services Committee;held the ranking seat on the General Oversightand Investigations Subcommittee; served as amember of the Committee on Education; and asa senior member of the Small BusinessCommittee. While in office, he was chosen toserve on, and later chaired, the EthicsCommittee and the Joint Economic Committeeof the House and Senate. Mfume was chairmanof the Congressional Black Caucus and laterchaired the CBC’s Task Force on AffirmativeAction. In his last term of Congress, the HouseDemocratic Caucus appointed him ViceChairman for Communications.

Robert H. Michel is Senior Advisor forCorporate and Governmental Affairs at Hogan &Hartson L.L.P. He served thirty-eight years inCongress as a Representative from Illinois. Hisfirst leadership position was Chairman of theCongressional Campaign Committee in 1972.He then served as Republican Party Whip from1974 until 1980, when he was elected andserved for fourteen years as House MinorityLeader. Mr. Michel served for twenty-one yearsas a member of the House AppropriationsCommittee. Mr. Michel serves on the boards ofBNFL, Inc., the Dirksen Leadership Center,Bradley University, and the Capitol Hill Club.He also serves as co-chair of the NationalCommission on Federal Election Reform. In1989 Mr. Michel was presented with the CitizensMedal. In 1994, he was awarded thePresidential Medal of Freedom—our nation’shighest civilian honor.

Leon Panetta is Director of the Leon and SylviaPanetta Institute for Public Policy at California

State University, Monterey Bay. Panetta served asWhite House Chief of Staff during the ClintonAdministration from July 1994 to January 1997.Before assuming that role, he served as directorof the Office of Management and Budget. Beforehis move to the White House, he was a U.S.Representative from California’s sixteenth con-gressional district from 1977 to 1993, represent-ing the Monterey Bay area. During his years inCongress, Panetta chaired several committeesand subcommittees such as the HouseCommittee on the Budget and the HouseAgriculture Committee’s Subcommittee onDomestic Marketing, Consumer Relations, andNutrition. His House tenure included four yearsas chairman of the Budget Committee.

Donna E. Shalala served as Secretary of Healthand Human Services in the ClintonAdministration from 1993 to 2001. Before joiningthe Clinton Administration, Shalala served asChancellor of the University of Wisconsin-Madison. She has taught political science atSyracuse University, Columbia, the CityUniversity of New York, and the University ofWisconsin-Madison. In the Carter Administra-tion, she served as Assistant Secretary for PolicyDevelopment and Research, U.S. Department ofHousing and Urban Development. She is cur-rently a professor of Political Science andPresident of the University of Miami.

Senior Counselors

Norman J. Ornstein is a resident scholar atAEI. He also serves as an election analyst forCBS News. Ornstein writes regularly for USAToday as a member of its Board of Contributorsand writes a column called “Congress InsideOut” for Roll Call. He co-directs the Transition

The Congress ix

to Governing Project and also serves on theCouncil on Foreign Relations First RespondersTask Force on Homeland Security. He appearsoften on television programs such as Nightline,Today, Face the Nation, and The NewsHour withJim Lehrer. He writes frequently for the NewYork Times, the Washington Post, and othermajor newspapers and magazines. His booksinclude Vital Statistics on Congress, 2001-2002,with Thomas E. Mann and Michael J. Malbin(2002) and The Permanent Campaign and ItsFuture, with Thomas E. Mann (2000).

Thomas E. Mann is the W. Averell HarrimanChair and Senior Fellow in Governance Studiesat The Brookings Institution. Between 1987 and1999 he was Director of Governmental Studiesat Brookings. Before that, he was executivedirector of the American Political ScienceAssociation. Mann, a fellow of the AmericanAcademy of Arts and Sciences, is also workingon projects dealing with campaign finance (inthe U.S. and other countries) and election reform(including redistricting). His books includeVital Statistics on Congress, 2001-2002, withNorman J. Ornstein and Michael Malbin (2002);The Permanent Campaign and Its Future, withNorman J. Ornstein (2000); and Inside theCampaign Finance Battle: Court Testimony onthe New Reforms, with Anthony Corrado andTrevor Potter (2003).

Executive Director

John C. Fortier is a research associate andpolitical scientist at AEI, where he is the projectmanager of the Transition to Governing Project.He is also a regular participant in “ElectionWatch,” AEI’s election analysis forum. Fortierhas taught at Boston College, HarvardUniversity, and the University of Delaware. Hehas published articles in the Review of Politics,PS: Political Science and Politics, The Universityof Michigan Journal of Law Reform (forthcom-ing), State Legislatures Magazine, the New YorkTimes, TechCentralStation, the Newark StarLedger, and the Washington Times. Mr. Fortierhas provided commentary for BBC radio and tel-evision, CTV (Canadian television), Fox News,C-SPAN, WBUR (NPR, Boston), WAMU (NPR,Washington), and WNYC (NPR, New York).

Assistant Director Research AssistantsCaroline Rieger Kimberly Spears

Larissa Davis

Former StaffPaula Ramer

InternsWill Adams Devin FinnKathleen Aldrich Helen KimThomas Cassels Ryan MarksJames Christenson Peter Walgren

Preface: The Continuity of Government 1

Continuity of Congress: The Problem 6The Problem of Mass Vacancies 6The Problem of Incapacitated Members 10

Continuity of Congress: Recommendations 14Central Recommendation 14The Rationale for a Constitutional Amendment 16Additional Measures Congress Should Consider 18Alternatives to Constitutional Amendment Do Not Solve the Problem of Mass Vacancies 19Arguments Against Temporary Appointments 22The Form of a Constitutional Amendment 24Essential Elements for a Temporary Appointment Provision 27

Conclusion 31

AppendicesI. Commission-Sponsored Public Events 33II. The Capitol as a September 11th Target 34III. Relevant Constitutional Provisions 35IV. Special Elections in the Case of Death for the United States House of 36

Representatives from the 99th to 107th CongressV. Time Requirements for Filling Congressional Vacancies According to 37

State Laws VI. Text of Proposed Constitutional Amendments 44VII. Examples of Emergency Vacancy Provisions as Legislated by States 52VIII. Initial Election Rates for Senators Following a Gubernatorial Appointment 57

Summary of Central Recommendation 58

Table of Contents

1The Congress

Suddenly the television screens go blank! AlQaeda operatives have detonated a smallnuclear device on Pennsylvania Avenue halfwaybetween the White House and the Capitol.A one-mile-radius circle of Washington isdestroyed. Everyone present at the Capitol, theWhite House, and in between is presumed dead,missing, or incapacitated. The death toll is hor-rific, the symbolic effect of the destruction of ournational symbols is great, but even worse, theAmerican people are asking who is in charge,and there is no clear answer.

The incoming president and vice president aresurely dead, so the presidency passes throughthe line of succession to the Speaker of theHouse and then to the President Pro Tempore ofthe Senate. But both of them were at the inaugu-ral ceremony, as protocol requires, so the presi-

dency passes to the cabinet officers—but whichcabinet? The president-elect never took officeand never confirmed a cabinet. The presidencypasses through the line of succession to the cab-inet officers of the departing administration,assuming they have not resigned by January20th, as is standard procedure, and assumingthat they were not at the White House biddingfarewell to the outgoing president. Perhaps theSecretary of Veterans Affairs, or another lesser-known cabinet member, was not in the area; thenhe or she would become president. Or maybe noone in the line of succession is alive, and anumber of generals, undersecretaries, and gov-ernors claim that they are in charge.

Congress has been annihilated as well, with onlya few members who did not attend the ceremonyremaining. It will be many months before

It is 11:30 A.M., inauguration day. Thousands await the noon hour when a new president will take the oath of office in the presence of members of Congress, the Supreme Court, family, and supporters. The outgoing president is meeting at the White House with his cabinet and top aidesfor a final farewell before attending the swearing in ceremony where the reins of powerwill switch hands. Television networks have their cameras trained on the West Front of theCapitol, beaming live coverage of the event into millions of homes around the world.

Preface: The Continuity of Government

Congress can function. Our Constitution requiresa majority of each house of Congress to constitutea quorum to do business, and no such majority ofthe House or Senate exists. In addition, becauseof a series of past parliamentary rulings, there isconfusion about whether there are enough mem-bers to proceed. The House’s official interpreta-tion of the quorum requirement is a majority ofthe living members, a proposition that scholarshave questioned. Under this interpretation, ifonly five House members survive, a group ofthree might proceed with business and elect anew Speaker who would become president of theUnited States, bumping any cabinet member whohad assumed the presidency and remaining inoffice for the rest of the four-year term.

Because the House of Representatives can fillvacancies only by special election, the Housemight go on for months with a membership ofonly five. On average, states take four monthsto hold special elections, and in the aftermathof a catastrophic attack, elections would likelytake much longer. Under the SeventeenthAmendment governors can fill vacancies withindays by temporary appointment, therefore theSenate would reconstitute itself much morequickly than the House.

Imagine in this chaotic situation that all theseevents are taking place without access to normalorganization, procedure, and communicationchannels. The confusion might very well lead toa conflict over who would be president, Speakerof the House, or commander in chief, and acloud of illegitimacy would likely hang over allgovernment action. The institution that mightresolve such disputes is the Supreme Court.However, it is likely that the entire Court wouldbe killed in such an attack, leaving no final tri-

bunal to appeal to for answers to questions aboutsuccession and legislative and executive action.A new court could be appointed by a new presi-dent and confirmed by a new Senate, but whichpresident, which Senate, and how soon? Further,would we want the entire Supreme Courtappointed for life tenure by a disputed orunelected president?

As terrible as the events of September 11thwere, we were fortunate that in the aftermath,our government was able to function throughnormal constitutional channels. It almost wasnot so. In interviews broadcast on the Al-Jazeeranetwork, the 9/11 plotters have claimed that thefourth plane, United Flight 93, was headed forthe Capitol (see Appendix II). This fourth planetook off forty-one minutes late, which allowedthe passengers to contact loved ones by cellphone and learn that their flight was on a suicidemission. Passengers stormed the cockpit, ulti-mately bringing down the plane and preventingit from hitting its target.

If United Flight 93 had departed on time and thehijackers had flown to Washington without inter-ference, the plane might have hit the Capitolbetween 9:00 and 9:30 A.M. At nine o’clock theHouse met with Speaker J. Dennis Hastert (R-IL)presiding and recognized Representative EarlBlumenauer (D-OR), who spoke about the WorldHealth Organization. Representative TimJohnson (R-IL) took over the chair and recog-nized Representative Cass Ballenger (R-NC),who discussed the budget surplus. The chairthen recognized Representative Peter DeFazio(D-OR), who talked about the Social SecurityTrust Fund. The floor was not heavily populatedthat Tuesday morning, with most business sched-uled later that day, but there were still a number

Preserving Our Institutions2

of members on the floor and many others in lead-ership offices or in private meetings in theCapitol. How many members of the House werein the building that morning is difficult to calcu-late, but it is clear that many would have per-ished. Had the attacks occurred a little later inthe day, the toll would have been even greater.What if the plane had hit the Capitol the weekbefore, on September 6, 2001, when MexicanPresident Vicente Fox addressed a joint sessionof Congress with the vice president and the pres-ident’s cabinet in attendance? What if the attackhad been carried out during a major vote whenalmost all members were present?

The inauguration scenario described above isadmittedly dire, but even less calamitous sce-narios could plunge our constitutional govern-ment into chaos. Imagine a House ofRepresentatives hit by an attack killing morethan half the members and unable to reconsti-tute itself for months. Imagine any attack killingthe president and vice president, subjecting usto a new president who had not been elected bythe people. Imagine a biological attack that pre-vented Congress from convening for fear ofspreading infectious agents. A few years ago,these were fanciful notions, the stuff of actionmovies and Tom Clancy novels. Now they are alltoo realistic.

The Continuity ofthe Three Branchesof Government

The mission of the Continuity of GovernmentCommission is to make recommendations toensure the continuity of our three branches of

government after a terrorist attack onWashington. While we hope and pray that theUnited States never faces such an attack, webelieve it is imperative to plan for such a sce-nario. Given the events of September 11th, wemust prepare for an orderly and legitimate suc-cession of governance after a catastrophic event.

What are the problems of continuity associatedwith the three branches of government?

Congress. The greatest hole in our constitu-tional system is the possibility of an attack thatwould kill or injure many members of Congress,thereby preventing the branch from operating oralternatively, causing it to operate with such asmall number that many people would questionits legitimacy. The problem is acute in theHouse of Representatives. Because the Housecan only fill vacancies by special election, notby temporary appointment, it would take overfour months to reconstitute the full membershipof the House. In the interim, the House might beunable to meet its quorum requirement andwould be unable to proceed with business.Alternatively, due to ambiguities regarding thedefinition of a quorum, a very small number ofrepresentatives might be able to conduct busi-ness for many months, possibly electing aSpeaker who could become the president of theUnited States. A House consisting of only a fewmembers would raise serious questions of legit-imacy. Finally, it is possible that an attack,severely injuring but not killing large numbersof members, would threaten the continuity ofboth the House and the Senate. Because it isvery difficult to replace incapacitated members,many House and Senate seats would remaineffectively vacant until the next general election.If anyone doubts the importance of Congress in

The Congress 3

times of crisis, it is helpful to recall that in thedays after September 11th, Congress authorizedthe use of force in Afghanistan; appropriatedfunds for reconstruction of New York and formilitary preparations; and passed major legisla-tion granting additional investigative powersand improving transportation security. In afuture emergency, Congress might also be calledupon to confirm a new vice president, to elect aSpeaker of the House who might become presi-dent of the United States, or to confirm SupremeCourt justices for lifetime appointments. In theevent of a disaster that debilitated Congress, thevacuum could be filled by unilateral executiveaction—perhaps a benign form of martial law.The country might get by, but at a terrible cost toour democratic institutions.

The President. Presidential succession is themost visible aspect of continuity of government.Nothing is more important than having a credi-ble and legitimate president leading the nationin the aftermath of a catastrophic attack. In thisarea, the country has some existing protection inthe Constitution and in the PresidentialSuccession Act of 1947, which provide for thetransfer of power to legitimate authorities. Butthe law defining presidential succession is by nomeans perfect, and there are a number of sce-narios that would leave doubt as to who is pres-ident or elevate an obscure claimant to theoffice. There are at least seven significant issueswith our presidential succession law that war-rant attention. First, all figures in the currentline of succession work and reside in theWashington, D.C. area. In the nightmare sce-nario of a nuclear attack, there is a possibilitythat everyone in the line of succession would bekilled. Second, a number of constitutional schol-ars doubt that it is constitutional to have the

Speaker of the House and the President ProTempore of the Senate in the line of succession,because they do not meet the constitutional def-inition of “Officers” of the United States. Third,regardless of its constitutionality, some questionthe wisdom of putting the President Pro Temporeof the Senate in the line of succession, becausethis largely honorific post is traditionally held bythe longest serving senator of the majority party.Fourth, some suggest that congressional leadersof the president’s party should be in the line ofsuccession; the current law allows for a switchin party control of the presidency if the Speakerof the House or President Pro Tempore of theSenate is from a different party than the presi-dent. Fifth, the line of succession proceedsthrough the cabinet members in order of thedates of creation of the departments that theyhead. While several of the most significantdepartments are also the oldest, it may not makesense to rely simply on historical accident ratherthan an evaluation based on present circum-stances in appointing a successor. For example,should the Secretary of the Interior be ahead ofthe Secretaries of Commerce, Energy, orEducation? Sixth, if the line of successionpasses to a cabinet member, the law allows forthe House of Representatives to elect a newSpeaker (or the Senate a new President ProTempore) who could bump the cabinet memberand assume the presidency at any time. Seventh,the Twenty-fifth Amendment provides for severalinstances of presidential disability when thevice president can act as president, but it doesnot cover circumstances when the president isdisabled and the vice presidency is vacant. Inthis case, the Presidential Succession Act allowscongressional leaders and cabinet officers to actas president for a short time, but only if theyresign their posts.

Preserving Our Institutions4

This commission will issue detailed recommen-dations on presidential succession later thisyear. The aim of the recommendations will be toensure that there is a legitimate and expeditioustransfer of power to individuals clearly desig-nated in advance. It is not acceptable to face asituation when no one in the line of successionsurvives or when there are competing rivals forthe presidency or a presidency that shiftsnumerous times from one individual to another.

The Supreme Court. The deliberative sched-ule of the Supreme Court of the United States isgenerally predictable and measurable over aperiod of months: from the time petitions arefiled, to the time a case might be argued, to thetime a decision would be delivered by theCourt. There have been, however, extraordinarycases that require the Court’s immediate atten-tion. If such a case arose during a nationalcrisis involving, for example, separation ofpowers issues or presidential succession issues,the Supreme Court might be needed to make aprompt ruling. Thus, the continuity of the

Supreme Court during a period of crisis alsodeserves attention.

Congress has provided that a quorum of theSupreme Court is six justices. In the absence ofa quorum, there are provisions for sending casesto the lower courts. Additionally, lower courtsroutinely rule on constitutional issues. If theentire Supreme Court were eliminated, however,there would be no final arbiter to resolve differ-ences in the lower courts’ opinions for a periodof time. This situation could add to feelings ofinstability in the country. Moreover, the appoint-ment process of an entirely new Court by apotentially un-elected president (serving in theline of succession) presents other issues thatneed to be addressed.

The Continuity of Government Commission willaddress succession in each branch of govern-ment. This first report focuses on the continuityof Congress, the biggest hole in our constitu-tional system. Our second and third reports willcover the presidency and the judiciary.

The Congress 5

I. The Problem ofMass Vacancies

The House of Representatives would be severelyaffected by mass vacancies caused by a cata-strophic attack. The difficulty is rooted in ourConstitution, which prescribes different methodsfor filling vacancies in the House and Senate. Forvacancies in the House of Representatives, ARTI-CLE 1, SECTION 2, CLAUSE 4, provides that“when vacancies happen in the representationfrom any state, the executive authority thereofshall issue writs of election to fill such vacan-cies.” A special election is the only method for

filling House vacancies. By contrast, theSeventeenth Amendment, which governs vacan-cies in the Senate, provides that “when vacan-cies happen in the representation of any state inthe Senate, the executive authority of such stateshall issue writs of election to fill such vacan-cies; provided, that the legislature of any statemay empower the executive thereof to make tem-porary appointments until the people fill thevacancies by election as the legislature maydirect.” Because almost all state legislatureshave given their governor the power to make tem-porary appointments until an election is held,Senate vacancies are, in practice, filled almostimmediately by gubernatorial appointment.

Preserving Our Institutions6

Continuity of Congress: The Problem

In the aftermath of an attack that killed or severely injured a largenumber of representatives and senators, there is a high probabilitythat there would be no functioning Congress, or a Congress with such asmall membership as to call into question the legitimacy of its actions. A catastrophic attack that killed many members would directly affect the House ofRepresentatives because the Constitution effectively prevents the swift filling of vacancies inthat body. An equally problematic scenario would be an attack that left many members incapaci-tated, which would affect both the House and Senate because neither chamber can easily replaceliving, but incapacitated, members until the next general election. The twin problems of mass deathand incapacitation would threaten the functioning of Congress just at the time our country is mostin need of strong leadership.

The House of Representatives would have manyseats vacant for a significant period of time inthe aftermath of an attack because the process offilling vacancies by special election takes onaverage four months. In the 99th through the107th Congress, the average time it took statesto hold special elections to fill House vacanciescaused by death was 126 days. Some of thesevacancies were filled in as little as two and ahalf months, while others lasted for over ninemonths (see Appendix IV). Differences in statelaws and the circumstances of the vacancygreatly affect the time it takes to hold a specialelection. Some states dispense with primariesfor special elections. Others give the governorbroad discretion on the timing of the election.The timing of the election is often affected bywhen in the course of the term the vacancyoccurs. Some states do not fill vacant seats ifthey occur in the last six months of a term (seeAppendix V).

There are good reasons for the length of time ittakes to hold special elections. Candidates needa significant period of time to qualify for theballot (e.g., by securing a number of signa-tures). Many states require political party pri-maries rather than allowing the parties to selecttheir candidates directly. A real campaignrequires time for candidates to communicatewith voters, debates to take place, the media toscrutinize the candidates, etc. Finally, there arelogistical limitations on setting up pollingplaces and printing ballots.

How quickly could states hold special electionsif they adopted new laws that expedited thoseelections? Under ideal circumstances, statesthat dispense with primaries and streamlinetheir special election process might be able to

complete one within two months. The commis-sion estimates, however, that in the chaos afteran attack, it would be difficult for even the mostexpedited elections to take place within threemonths. Not only might there be an initial periodof confusion that would delay the election, butthere is also no precedent for holding hundredsof special elections at the same time. One prob-lem along these lines was identified by a Houseworking group chaired by RepresentativesChristopher Cox (R-CA) and Martin Frost (D-TX)—there are a limited number of ballot print-ing companies, and they are not prepared toprint ballots on a moment’s notice for more thana few races at a time. There would be similarissues in setting up polling places.

Under the current constitutional arrangement,there is no effective way to begin filling Housevacancies in less than three months after anattack. Given this limitation, how would anattack that kills hundreds of members affect theworkings of Congress?

Mass Vacancies Could Preventthe House from Operating atAll: The Quorum Requirement

Like any legislative body, the United StatesCongress has a quorum requirement, a provisionto ensure that a minimum number of members ispresent for the consideration of important busi-ness. Without such a requirement, a few mem-bers might meet and pass legislation, eventhough the voting members would represent onlya fraction of the American people. But Congress’quorum requirement is more rigid than those inother legislative bodies because it is embeddedin the United States Constitution and cannot be

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changed without a constitutional amendment.ART. 1, SEC. 5 provides that “…a Majority ofeach [House] shall constitute a Quorum to doBusiness; but a smaller Number may adjournfrom day to day, and may be authorized tocompel the Attendance of absent Members, insuch Manner, and under such Penalties as eachHouse may provide.” It is clear from the text ofthe Constitution and subsequent precedents thatonce it is established that no quorum is present,the only actions that the House or Senate maytake are to adjourn or to compel the attendanceof absent members. No other business canbe conducted.

Under the most commonsense reading of thisclause, the Constitution requires that a majorityof the whole number of each house of Congressbe present in order for that house to hold votesof substance. The authors of the Constitutionknew how to express the difference between amajority of those present and a majority of thewhole number, as they did in the clauses provid-ing for impeachment trials and for the adviceand consent of the Senate to treaties where two-thirds of the “members present” are required.The Framers’ understanding of the clause asrequiring a majority of the whole number of eachbody to constitute a quorum prevailed until theCivil War. Today, under this interpretation, iffewer than 218 members of the House ofRepresentatives were alive, then Congress couldnot function until special elections filled enoughvacancies to reach the constitutional quorumrequirement. Mass vacancies would mean thatno legislation could be passed, as all legislationrequires the assent of both houses. No appropri-ations could be made; no declaration of war; nolaws passed to assist in the gathering of intelli-gence or apprehension of terrorists. If the

Speaker of the House was killed, the Housecould not elect a new Speaker—who would bethe third person in the line of succession? If thepresident or vice president were killed, no newvice president could be confirmed, as theappointment of a new vice president requires theconsent of both the House and Senate. Given thelength of time it takes to hold special elections,Congress could not function in these importantareas for months.

Mass Vacancies Could Call intoQuestion the Legitimacy ofCongress: Ambiguities in theQuorum Requirement MightAllow a Few Members to Actfor the Whole Congress

In practice, the official interpretations by theHouse and the Senate of their quorum require-ments have not been as stringent as the consti-tutional language would seem to require.Parliamentary rulings in the House and Senate,beginning during the Civil War, have defined thequorum more liberally than a majority of themembers of each house. The quorum require-ment in the House is now defined by precedentas a majority of the members who are “chosen,sworn and living.”

The evolution of the interpretation of the quorumrule is a long and complicated story. In brief, thefirst change to the interpretation of the Housequorum rule occurred in 1861 when there was adepleted House membership due to Southernsecession. Speaker Galusha Grow noted that a“majority of all the possible Members of theHouse,” could not be obtained. He ruled that

Preserving Our Institutions8

the quorum would consist of a majority of thoselegitimately chosen, which exempted the seatson the Southern states from the count. TheSenate adopted the same rule in 1864 for simi-lar reasons.

In 1868, the Senate modified its interpretationof the quorum rule to be a majority of those“duly chosen and sworn.” The occasion of thechange was post-war confusion surrounding newgovernments in the South and uncertainty aboutwhen the Southern states would be fully repre-sented in Congress.

From 1879 to 1890, there were several instanceswhen the Speaker expressed a personal opinionthat the House quorum rule was a majority ofthose “chosen and living.” It was not, however,until 1891 that Speaker Reed issued an officialopinion to this effect. The occasion was a vote ofminor importance. Because several members ofthe chamber had died, there would have been noquorum present if a majority of the wholenumber was counted, but there was a majority ifone excepted the deceased members. Finally, in1906, Speaker Cannon modified the interpreta-tion of the quorum rule to be a “majority of thoseMembers chosen, sworn, and living, whosemembership has not been terminated by resig-nation or by action of the House.” The additionof “sworn” paralleled the Senate’s change of1868. Again, the occasion for the change was avote of minor importance. A few members hadnot yet been sworn in, and exclusion of theirseats from the counting of the quorum meantthat a quorum could be achieved for that vote.The current House interpretation of the quorumrule is a “majority of those Members chosen,sworn, and living, whose membership has notbeen terminated by resignation or by action of

the House.” The current Senate interpretation ofthe quorum rule is “a majority of the Senatorsduly chosen and sworn.”

The most significant aspect of the current inter-pretation for the purposes of continuity of gov-ernment is the provision that only a majority ofthe living members needs to be present for a voterather than a majority of the whole number ofseats. In the case of a few deaths in the House,the change in the number needed for the quorumwould be insubstantial. (If 2 members of the 435were dead the quorum requirement would be 217instead of the 218 with no deaths and a full mem-bership.) But in the case of a large number ofdeaths, the current interpretation of the quorumrequirement would have serious consequences.On the one hand, it would ensure that the Housecould operate with a quorum even after a massivedeath toll. But at the same time, it would allowthe House to operate with just a handful of mem-bers. Take, for example, an attack that kills allbut nine members of Congress. Five of those ninewould constitute a quorum, and that tiny, unrep-resentative group could pass legislation out ofthe House. More troubling is the intersection ofthe Presidential Succession Act with an attack onCongress. In the case of the death of the presi-dent and vice president, a nine member Housecould then elect a new Speaker, who wouldbecome president of the United States for theremainder of the term. Many would question thelegitimacy of that president and the actions of theHouse with a severely diminished membership.

The issue of the quorum is one of the most sig-nificant for a Congress after a catastrophicattack. A strict interpretation of the constitu-tional quorum requirement would mean that theHouse would be unable to act for many months

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until sufficient vacancies were filled. A looserinterpretation would mean that the House ofRepresentatives might continue to function, butthat very few members, representing a small por-tion of the country, could purport to take charge.

The most troubling aspect of the quorum rule isthe confusion surrounding its interpretation andapplication. For example, if a small number ofremaining members decided to forge ahead withlegislative initiatives, and then six months later,a House replenished by special elections, chal-lenged these initiatives, would these actionsstand? If no one objected to the absence of aquorum, but it was clear that no quorum couldbe formed because of deaths and/or incapaci-ties, would the actions of such a House be legit-imate or subject to challenge? In the fog of anattack, the murky nature of the quorum require-ment threatens to undermine confidence in thelegitimacy of government actions.

Aside from the question of the proper interpre-tation of the quorum requirement, there areother quorum issues that might arise in the after-math of an attack. The absence of a quorum isonly noted if a member calls for a quorum—acall that any single member is entitled to makeduring any vote. Even if a strict interpretation ofthe quorum requirement were adopted, Congresscould proceed if no one objected to the absenceof a quorum. This is a sensible procedure forCongress during normal times, but it createsgreat uncertainty in a post-attack Congress. Ifonly 100 members survived an attack, wouldsomeone object to the absence of a quorum withthe hope of stopping all votes? Conversely, ifonly a few members survived, would they pro-ceed without a quorum call and go on to do busi-ness as if they had a full quorum available?

Finally, there are several scenarios that wouldnot affect the issue of calling a quorum, butwould be troubling nonetheless. An attack thatkilled 200 members of the House ofRepresentatives would not cripple the Congress,but it might drastically alter the political andgeographical balance of the Congress. An attackmight occur when one party caucus was meet-ing, effectively wiping out most of one party butnot the other. It is also possible that an attackwould hit when state or regional delegationswere meeting, thus eliminating representationfor a part of the country for many months.

II. The Problem ofIncapacitatedMembersIn the past, there has been little concern aboutthe long-term disability or incapacitation ofmembers of Congress, and no provisions exist inrules, law, or the Constitution about definingincapacitation or replacing such members, tem-porarily or permanently, if they are unable to per-form their duties for extended periods of time.This is partly because the Framers barely con-sidered the consequences of incapacitation forany office. There is a fleeting mention in ART. 2,SEC. 1 that Congress could provide for officerswho might act when the president was incapaci-tated. But none of our presidential successionacts have defined incapacity or dealt with it in asubstantive way. It was only with the Twenty-fifthAmendment in 1965 that incapacity was seri-ously addressed. That amendment was not inplace to deal with serious incapacity issues inthe Garfield and Wilson presidencies, as well asa number of other lesser incidents. The questionof incapacity was not considered at all for mem-

Preserving Our Institutions10

bers of Congress, as the loss, even for months oryears, of one, two, or three members out of 100 or435 would not be a debilitating event.

But the loss for weeks, months, or years of tensor hundreds of incapacitated lawmakers isanother story. The secret creation of a bomb andradiation-proof bunker for Congress at theGreenbrier resort in West Virginia during theCold War was based on the assumption that anuclear attack on Washington would kill, notincapacitate most members of Congress. Theobjective then was assuring, with the noticeavailable from the time missiles were launchedin Siberia until they arrived in Washington, thatCongress could evacuate the 200 miles or so tothe Greenbrier. No contingency plans existed foran attack without notice, or one that caused notdeath, but widespread incapacitation.

The threat from terrorism is different. Not onlycould there be an attack—including a nuclearone—with no notice, but the threat of chemicaland biological warfare, or exploding jet fuel, alsomakes widespread temporary incapacitation amore likely scenario, and perhaps a more vexingproblem. In the event of multiple deaths, theSenate at least can quickly fill vacancies viagubernatorial appointments. But neither theHouse nor the Senate can fill vacancies due totemporary incapacitation. For incapacitatedmembers, the relevant seats would be effectivelyvacant until the member recovers, resigns, ordies and is replaced, or until the next generalelection. In this case, the quorum problem loomslarger, since even under the expansive definitionof a majority of those lawmakers “chosen, sworn,and living,” incapacitated members would beincluded in the definition but unable to helpconstitute the quorum. For example, if 220

members of the House of Representatives werealive but unable to perform their duties, therecould be no quorum.

An Attack that Leaves Membersof Congress Incapacitated

Because of the availability of chemical and bio-logical agents, the possibility of mass incapaci-tation is real. A chemical attack might leavethousands in burn units or with respiratory andneurological injuries. If such an attack werecentered on Congress, many members could bein hospital intensive care units for months. Orimagine if the anthrax attack on the Senate hadbeen undetected and particles had dispersedwidely through the ventilation system. Senatorsand their staffs might have survived the attack,but the recovery period would have been manymonths. More troubling is the possibility of aninfectious disease such as smallpox. If even afew members of Congress contracted the dis-ease, the members might choose not to convenefor fear of spreading the disease. Finally, even aconventional attack might leave hundreds ofmembers in hospitals or burn units—alive, butunable to perform their duties for a significantperiod of time.

How Incapacitation AffectsCongress

When vacancies occur in Congress, there areestablished processes for filling them (specialelection in the House; gubernatorial appoint-ment followed by special election in the Senate).When a member of Congress is alive but unableto perform his or her duties, there is no way tofill what is in effect a temporary vacancy. Under

The Congress 11

normal circumstances, this does not pose aproblem for the functioning of government. If ahandful of Senators are incapacitated, the insti-tution can function, short a few votes. But ifthere are large numbers of incapacitated mem-bers, the continuity of Congress is threatened. Inthe House of Representatives, no special elec-tion is called until a seat is declared vacant.Similarly, in the Senate, no gubernatorialappointment or special election can occur ifthere is no vacancy. Mass incapacitation bringswith it all the problems that mass vacancies inthe House of Representatives would, but it isworse in three respects. First, mass incapacita-tion affects both the House and the Senate.Second, the temporary vacancies caused byincapacitation would not be filled for an indefi-nite amount of time, only until the memberrecovers, resigns, dies, or the term of officeends. Third, mass incapacitation makes it virtu-ally certain that Congress would be unable toreach its quorum requirement even under itsmost lenient interpretation.

Precedents for Members withLong Term Incapacity Remainingin Congress

Under normal circumstances, neither house ofCongress attempts to determine the capacity ofindividual members. Many members havestayed in their elected positions for months orlonger, while comatose or clearly unable to per-form their duties. There has been only onerecent case of a seat declared vacant whileheld by a living member—that ofRepresentative Gladys Noon Spellman (D-MD). But the Spellman case is extraordinary.Spellman fell into a deep and irreversible coma

on October 21, 1980, while campaigning forre-election. While incapacitated, she was re-elected by the people of her district. She wasnot sworn in when the new Congress com-menced in January 1981, though her nameappeared on the first rollcall. On February 23,1981, the House passed H. Res. 80 declaringthe seat vacant because of her “absence andcontinuing incapacity.”

A somewhat similar case occurred in 1972 withHouse Majority Leader Hale Boggs (D-LA) andRepresentative Nicholas Begich (D-AK), whenboth were lost in a plane crash. Because theaccident occurred close to the next election,their names remained on the ballot, and certifi-cates of election were issued showing their elec-toral victory. While the bodies were never found,the seats were declared vacant after an Alaskacourt officially determined that they were pre-sumed dead.

There have also been many cases of members ofCongress who have been unable to perform theirduties but have remained in office. OctogenarianSenator Carter Glass (D-VA) was absent for overfour years in the 1940s. Similarly, the RepublicanConference declared Senator Karl Mundt’s (R-SD) committee slots vacant in February of 1972,but he remained formally in his Senate seat untilthe end of his term in 1972 despite suffering asevere stroke in late 1969 that left him unable toperform his senatorial duties. The only precedentfor declaring a seat vacant because of incapacityis the Spellman case, and in that instance, theHouse only made the declaration when she wasphysically unable to attend her swearing in at thebeginning of the next term. There has never beena case of a seat declared vacant due to incapacityduring the current term of a sworn occupant.

Preserving Our Institutions12

The only other way that Congress could fill theseats of incapacitated members is by expellingthe incapacitated member by a two-thirds vote.But this presumes that the remaining members ofCongress were sufficient to constitute a quorum.It would also mean that incapacitated memberswould not return to their duties upon recovery.They would be supplanted by replacements.

Ignoring incapacity is understandable for aCongress operating during normal times. As withthe vacancy provision, Congress would not ceasefunctioning if a few members were unable to

perform their duties. There is also the danger ofabuse of an incapacity provision, with congres-sional leaders or governors tempted by politicalor other reasons to replace members by declar-ing them incapacitated.

Incapacitation could cause the House and/orSenate to stop functioning. It could also distortthe membership of either body if 20 or 30 per-cent of the members were incapacitated. Finally,since widespread incapacitation could go onindefinitely, the effect on the legislative branchcould continue for months or years.

The Congress 13

It is essential that large numbers of congressionalvacancies be filled shortly after they occur toensure that in the event of a catastrophic attack,Congress can continue to function in a way thatproperly represents the American people. In ourstudy, the commission consulted with currentand former members of Congress as well as legaland constitutional scholars. We held two publicmeetings where we heard testimony from experts.In the course of our investigation, we explored awide range of options short of a constitutionalamendment to ameliorate or solve these prob-lems. The commissioners share distaste forfrivolous or unnecessary amendments to theConstitution. Unfortunately, because theConstitution dictates the way that vacancies areto be filled in the House and Senate, there is noway to establish a procedure to quickly fill massvacancies without a constitutional amendment.

The expeditious filling of vacancies cannot beaccomplished through accelerated special elec-tions or by altering the quorum requirement.There is simply no effective way, short of a con-stitutional amendment, to replace members ofthe House who die, or to temporarily replacemembers of Congress who are incapacitated.

CentralRecommendation A constitutional amendment to give Congress thepower to provide by legislation for the appoint-ment of temporary replacements to fill vacantseats in the House of Representatives after a cat-astrophic attack and to temporarily fill seats inthe House of Representatives and Senate that areheld by incapacitated members.

Preserving Our Institutions14

Continuity of Congress: Recommendations

Since a catastrophic attack could prevent Congress from functioning or cause it to operate with a small, unrepresentative number, the Continuity of Government Commission finds the status quo unacceptable. There is a gaping hole in our constitutional fabric that would allowlarge numbers of vacancies in Congress to continue for a significant period of time. Thethreat of terrorism remains high, and it is clear that our governing institutions remain prime tar-gets. It is an urgent matter to repair that constitutional hole.

The commission recommends an amendmentthat adheres to the following principles:

When a large number of members arekilled or incapacitated, temporary replace-ments shall be made immediately, to fillvacant seats and to stand in for incapaci-tated members. The cleanest constitutionalsolution for filling vacancies in the House ofRepresentatives would be to adopt the same pro-cedure the Senate has employed since the ratifi-cation of the Seventeenth Amendment: providingfor the filling of all vacancies, even those occur-ring on a routine basis, with members appointedtemporarily by the governor until a special elec-tion is held. It is not necessary for the continuityof Congress to fill routine vacancies, but it isessential to fill mass vacancies. Many currentand former House members believe that tempo-rary appointments should be made only inextraordinary circumstances to preserve thecharacter of the House as the “people’s house.”The commission believes that a constitutionalamendment should give Congress the power toprovide by legislation for the filling of vacancies;to decide whether they need to be filled underroutine or extraordinary circumstances; and todetermine how many vacancies should trigger anemergency appointment procedure. Congressmust act to fill mass vacancies, but it should beallowed the leeway to determine exactly whenthe power to fill vacancies would be exercised.

With its understandable sensitivity to the statusof the House as an elected body, Congress maywell determine that a provision for temporaryappointments should only be triggered by amajor emergency, leaving in place existing pro-cedures for the replacement of lawmakersduring ordinary times.

Temporary appointments, in cases of bothvacancies and death, should be made bygovernors, or selected from a successionlist drawn up in advance by the memberwho holds the seat, or some combinationof these two methods. These methods forselecting temporary replacements would beswift, legitimate, and decisive—the three mostimportant criteria for such a selection. Thesecond method, a succession list drawn up inadvance by the member who holds the seat,would alleviate concerns that temporaryreplacements might hold radically differentviews and party affiliation than the membersthey replaced.

In the case of incapacitated members,replacements should stand in for the inca-pacitated member until the member recov-ers, the member dies and the vacancy isfilled, or until the end of the term. It is essen-tial that members of Congress who are incapaci-tated be able to return to their posts when theyrecover. Incapacitation should not serve as areason to oust legitimately elected representatives.

The commission prefers a concise amend-ment that allows Congress to provide formany of the details of the temporaryappointment procedure in legislation. Aconstitutional amendment can be comprehensive,laying out all the details of the temporary appoint-ments procedure, or it can be concise, grantingCongress the power to enact legislation to addressthe problem. The commission prefers a conciseamendment that gives Congress the power toshape a legislative solution within broad bound-aries laid out in the amendment. This approachhas the advantage of keeping the Constitution freeof minute detail, and it affords Congress the

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opportunity to adjust the legislation as circum-stances change. The commission prefers a shortamendment that delegates to Congress the powerto legislate a procedure for filling vacancies ineither House when a significant number of mem-bers are killed or become incapacitated as aresult of a natural disaster or an act of terrorism.This would enable Congress over time to adjustand improve the legislation it initially adopts, andto remedy procedures that experience proves tobe impractical or unpopular. Such corrections aremuch easier to make by the legislative processthan if the corrections require the adoption ofanother constitutional amendment.

The amendment and/or accompanying legisla-tion must specify:

• exactly when the procedure for the emergencymethod of temporary appointments shallbegin and end

• the qualifications of the temporary replace-ments

• the method of appointment

• limitations on the length of service of the tem-porary appointees

The Rationale fora ConstitutionalAmendmentThe commission recommends a constitutionalamendment to provide for the filling of largenumbers of vacancies in the aftermath of a cata-strophic attack. It was only after careful consid-eration of other alternatives that the commissiondecided to recommend a constitutional amend-ment. The United States Constitution is not the

Napoleonic Code; it does not contain a copiouslist of particulars. Our Constitution is broadlywritten and meant to last for the ages withoutsignificant tinkering. The founding generationratified the original Constitution and quicklyadded the first ten amendments that we call theBill of Rights. After those initial amendments,we have only amended our Constitution seven-teen times in more than 200 years. Such a his-tory makes it incumbent on any legislator toconsider alternatives short of amending theConstitution before embarking on such a rarecourse. Moreover, constitutional amendmentsare exceedingly difficult to enact, with the mostcommon method being passage by a two-thirdsmajority of both houses of Congress and ratifica-tion by three-quarters of the states’ legislatures.Constitutional amendments are also not desir-able because they may have unintended effects(as in the case of Prohibition), which once real-ized are difficult to undo given the arduousnature of the amendment process.

Despite all of the disadvantages of a constitu-tional amendment, the commission favors onebecause it is the only solution that adequatelyaddresses the problem of filling mass vacanciesin Congress quickly after a catastrophic attack.Our survey of alternative approaches persuadesus that no other option provides more than a par-tial and inadequate fix to the problem.

History of Attempts to Amendthe Constitution to Providefor Temporary Appointments,1947-1965

The idea of a constitutional amendment to pro-vide for temporary appointments to fill House

Preserving Our Institutions16

vacancies has a history. From 1947 to 1965,during the Cold War, over thirty constitutionalamendments were introduced in the House andSenate to give governors the power to make tem-porary appointments to fill vacant House seatswhen there were large numbers of vacancies.The House and Senate held several hearings onthe subject, and several constitutional amend-ments passed the Senate. The concerns of thatera were similar to today, but with some impor-tant differences. The primary fear then was of amassive nuclear strike from the Soviet Unionthat would kill a large number of House mem-bers. The problem of vacancies in the Housetoday is more or less the same as it was duringthe Cold War, but there is a much greater likeli-hood of an attack incapacitating large numbersof members. Most of the proposed constitutionalamendments in the earlier era dealt only withvacancies, and not with incapacity.

Three constitutional amendments passed theSenate by overwhelming margins. In 1954, aconstitutional amendment introduced bySenator Knowland (R-CA) passed the Senate 70to 1. The amendment granted governors thepower to make temporary appointments to fillHouse vacancies when more than 145 seats ofthe House were vacant. The House took noaction on the amendment. In 1955, a constitu-tional amendment introduced by SenatorKefauver (D-TN) passed the Senate 76 to 3.Again, the House took no action on the subject.The amendment granted governors the power tomake temporary appointments to fill Housevacancies when more than a majority of seats ofthe House were vacant. In 1960, the Senatepassed S.J. Res. 39, a three-part constitutionalamendment, by a vote of 70 to 18. The amend-ment provided for (1) District of Columbia

voting in presidential elections; (2) eliminatingthe poll tax; and (3) granting governors thepower to make temporary appointments to fillHouse vacancies when more than a majority ofthe seats were vacant. That year the House ofRepresentatives passed the first provision of S.J.Res. 39 allowing for D.C. voting in presidentialelections, which became the Twenty-thirdAmendment. The following Congress passed thesecond provision eliminating the poll tax, whichbecame the Twenty-fourth Amendment. TheHouse took no action on the third provisiongranting governors the power to make temporaryappointments to fill vacancies.

The following is the amendment proposed bySenator Knowland, S.J. Res. 39 (1954) (for othersuch proposals see Appendix VI):

SECTION 1. Whenever, in time of anynational emergency or national disaster, thenumber of vacancies in the House ofRepresentatives shall exceed one hundredand forty-five, the Speaker of the House ofRepresentatives shall certify that fact to thePresident. In case there is no Speaker, or inthe event of the inability of the Speaker todischarge the powers and duties of his office,such certification shall be made by the Clerkof the House of Representatives. Uponreceipt of such certification, the Presidentshall issue a proclamation declaring suchfact. The executive authority of each Stateshall then have power to make temporaryappointments to fill any vacancies in the rep-resentation of his State in the House ofRepresentatives which may exist at any timewithin sixty days after the insurance of such aproclamation. Any person temporarilyappointed to any such vacancy shall serve

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until the people fill the vacancy by electionas the legislature may direct.

SECTION 2. This article shall be inoperativeunless it shall have been ratified as an amend-ment to the Constitution by the legislatures ofthree-fourths of the several States, as providedin the Constitution, within seven years fromthe date of the submission hereof to the Statesby the Congress.

AdditionalMeasures CongressShould ConsiderWhile a constitutional amendment to allow tem-porary appointments is the only effective way tofill mass vacancies expeditiously, there are otherissues that Congress should address that wouldsupplement an amendment and be very helpfulin emergency circumstances.

Congress should consider changing its rules toensure that it could be effectively reconvenedafter an attack. Congress could be in session, inrecess, or in recess subject to being calledback, when an attack occurs. In each of thosecases, there should be a mechanism for callingCongress back into session if there is a cata-strophic attack. In particular, Congress mustconsider the possibility that the leadership ofboth chambers who may be tasked with recon-vening the House may not survive the attack.Another point of concern is the meeting placefor Congress. The Constitution requires the con-sent of both houses of Congress to move its loca-tion. Congress should consider clarifyingwhether a change of location could be ratifiedafter reconvening elsewhere. It should revisit

and update a law passed in 1793 that authorizesthe president to move Congress in times ofgrave danger.

Congress should consider providing in advancefor the possibility of short-term appropriationsfor the executive branch if Congress is unable tomeet. Congress should re-examine its proceduresat the beginning of a new Congress to address thepossibility that an attack at that time would dis-rupt the organization of Congress. Finally, bothchambers should revisit their practices on inau-guration day. They might consider keepingseveral designated members away from the cere-mony. The Senate should also consider ways toconfirm non-controversial cabinet appointmentsof a new president almost immediately followingthe swearing in of the president to ensure that theline of succession is preserved.

Several of these issues have already beenaddressed by a bipartisan congressional workinggroup chaired by Representatives ChristopherCox (R-CA) and Martin Frost (D-TX) and wereenacted into House rules for the 108th Congress.For example, the rules now allow the Speaker toreconvene the Congress to another location andprovide for successors to do the same.

Most of these aforementioned considerationscould be accomplished by amending the rules ofthe House and Senate. The implementation ofthese measures could begin immediately, beforeCongress passes and the states ratify a constitu-tional amendment to provide for the filling ofmass vacancies. These changes do not addressthe central problem of a catastrophic attackcausing mass vacancies and incapacitation ofmembers of Congress, but they would be veryhelpful in reducing the confusion after an attack.

Preserving Our Institutions18

Alternatives toConstitutionalAmendment Do NotSolve the Problemof Mass Vacancies

Why Expediting SpecialElections is Helpful but not Sufficient

The commission considered the possibility ofexpediting special elections. The states have thepower to alter their laws to hold special electionsto fill vacancies more quickly. In addition,Congress could preempt state laws under the“times, places, and manner” power of ART. 1,SEC. 4. For example, Congress might pass a lawthat requires that all special elections be heldwithin ninety days of a vacancy. While the statesand Congress could pass laws to speed up elec-tions, the commission does not believe that suchlaws would solve the central problem that threat-ens the continuity of Congress (i.e., mass vacan-cies in Congress caused by death or incapacitythat last for a significant period of time). Thereis a lower limit as to how quickly elections couldbe held. The commission estimates that underideal circumstances, states could hold electionswithin two months if they dispensed with partyprimaries and drastically accelerated otheraspects of the campaign. After a catastrophicattack, with large numbers of special electionstaking place simultaneously, the commissionestimates that even the most expedited electionswould take a minimum of three months. Threemonths is too long to continue without a func-tioning Congress. The president would act with-out a check, extraconstitutionally in some cases,

until Congress reconstituted itself. In addition,there is the possibility that a Congress of greatlyreduced size would act and that the vast major-ity of Americans could view this Congress asillegitimate. Shorter special election cycleswould not eliminate any of these problems, butonly slightly shorten their duration. Finally, thecommission does not believe that expedited spe-cial elections are appropriate for every state.Some states dispense with primaries in specialelections, but many do not. A severely shortenedelection is likely to provide little choice for thevoters. Only the most well-known and well-funded candidates would be able to gain namerecognition in an abbreviated campaign. Thecommission prefers that mass vacancies befilled quickly by temporary appointments andthat special elections take place within 120days, giving states the ability to hold primariesif they choose.

Several members of our commission served onthe Ford-Carter National Commission onElection Reform. Lloyd Cutler and RobertMichel chaired the commission and Leon Panettaserved as a member. Their service on the com-mission impressed upon them the importance ofwell-devised laws and procedures for electionadministration. States do not often have the occa-sion to revisit their laws respecting special elec-tions to fill vacancies in Congress, but September11th is a reason for doing so. The commissionrecommends that the states consider thoroughlytheir election procedures with special attentionto how they would hold special elections in theaftermath of a terrorist attack, and revise theirlaws accordingly. Along these lines, the Cox-Frost working group recommended specifically aHouse resolution encouraging states to revisittheir laws to provide for expedited special

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elections. The House passed such a resolution inthe fall of 2002. The commission supports thisresolution, but it notes that it would have a smalleffect in reducing the length of vacancies andthat the various states will come to different con-clusions as to the manner and the length of timein which they will hold special elections.

Why Clarifying the QuorumRequirement is not a Solution

Many of the problems surrounding a post attackCongress involve the quorum requirement. After acatastrophic attack, the House of Representativesmay be unable to assemble the “majority of thebody” required by the Constitution, making itimpossible to conduct business. After an attackthere is also a question of legitimacy with regardto the quorum because the House and Senateinterpret their requirement as a majority of theliving members. This allows for the possibility ofvery few members proceeding with business if,for example, three of the five living memberswere present. Incapacity poses another concernfor the quorum, as large numbers of disabledmembers might prevent the formation of aquorum of living members. There are some whosuggest that the House and Senate might adoptrules that would make the quorum requirementmore lenient, thus ensuring that there wouldnever be the absence of a quorum and Congresscould always proceed with business. For exam-ple, a quorum might consist of a majority of thoseliving and not incapacitated.

The commission sees the value of clarifying theinterpretation of the quorum requirement, but itdoes not believe that making the requirementmore lenient will ensure the constitutional conti-

nuity of Congress; quite the opposite. A lenientquorum requirement might result in a smallnumber of members acting as the whole Congressand calling into question the legitimacy of con-gressional actions. The reason that the quorumrequirement poses a concern after a catastrophicattack is that a large number of members may bekilled or incapacitated. The solution is to fill thevacancies so that Congress can proceed with anearly full membership, not to lower the quorumthreshold so the few remaining members canclaim a quorum is present.

The commission does favor clarification of thequorum requirement, but not as a substitute for aconstitutional amendment that would fill vacan-cies by temporary appointment. The commissionis concerned that the current interpretation inHouse and Senate rulings that a majority of theliving members constitutes a quorum does notsquare with the constitutional quorum require-ment of a majority of the whole body. It wouldoppose an attempt to make the quorum even lessstringent by exempting incapacitated membersfrom the calculation of the quorum. Finally, thecommission believes that the House and Senateshould not be able to proceed without a quorum,even if no one objects, if it is clear that so manymembers are dead or incapacitated that aquorum could not be assembled. In normaltimes, when no one objects to the absence of aquorum, it is implied that a quorum could mate-rialize if the matter were sufficiently important tomembers. However, after a catastrophic attack,there is no plausible argument that a majoritycould be assembled under any circumstances.Thus, it would pose a grave threat to legitimacyfor either body to proceed with business on thefiction that such a majority could appear.Furthermore, if Congress were to proceed with no

Preserving Our Institutions20

one objecting to the absence of a quorum, theneach member would be given the power of extor-tion over the others. At any time, one member, ifhis or her wishes were not fulfilled, could causeCongress to stop functioning by raising theobjection that there was no quorum.

Why Changes to House RulesAlone Cannot Fill Vacancies

Some have suggested that temporary appoint-ments to the House could be made by changes inHouse rules and that a constitutional amendmentis not necessary. The commission has studied thisargument, and believes that such an approachwould be unconstitutional. In addition, the com-mission believes that it would be destabilizing toadopt an approach that would surely be chal-lenged as unconstitutional after an attack at a timewhen we need clarity and legitimacy for Congress.

The argument for temporary appointments byHouse rules is as follows. The House could pro-vide by rule that its current members supply alist of successors who would serve as temporaryreplacements for the members in case of a cata-strophic attack. The argument rests on the factthat the courts have shown great deference toHouse rules because they are internal mattersthat do not concern the other branches of gov-ernment. Further, even if the arrangement were ofdubious constitutionality, no one would questionit in the midst of such a grave emergency. TheAmerican people would be grateful that vacan-cies would be filled by a method that legitimatelyreflects the wishes of Congress before the attack.The difficulty with such an argument is twofold.First, the Constitution is very clear that there isonly one method for filling vacancies in theHouse of Representatives—by special election.

ART. 1, SEC. 2, CL. 4 provides that “when vacan-cies happen in the representation from any state,the executive authority thereof shall issue writsof election to fill such vacancies.” History isconsistent with the Constitution, as no Housevacancy has ever been filled by any othermethod since the adoption of the Constitution in1789. While it is true that the Court grants greatdeference to the House and Senate in the rulesthey adopt to govern themselves, they have alsobeen clear about the limits of such deference.

Advocates of deference to House rules often citeU.S. v. Ballin and this sweeping pronouncementregarding the determination of whether a quorumis present: “…within these limitations all mat-ters of method are open to the determination ofthe house, and it is no impeachment of the ruleto say that some other way would be better, moreaccurate, or even more just.” The Court goes onto note that the House’s power to make its ownrules is “within the limits suggested, absoluteand beyond the challenge of any other body ortribunal.”1 Both of these broad statements ofsupport for the power of congressional rulemaking are, however, circumscribed by “limits,”and it is the limits that are significant here. Thelimitations the Court noted are that Congress“may not by its rules ignore constitutionalrestraints or violate fundamental rights, andthere should be a reasonable relation betweenthe mode or method of proceeding established bythe rule and the result which is sought to beattained.”2 The Court was very clear that Houserules could not violate constitutional restraints.The House could no more provide for the fillingof vacancies by method other than special

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1 U.S. v. Ballin 144 U.S. 1, 12 S.Ct.507, 36 L. Ed. 321.

2 Ibid.

elections than it could decide by House rule thatless than a two-thirds vote is needed to overridea presidential veto or pass a constitutionalamendment.

Second, as for the argument that no one wouldquestion potentially extraconstitutional congres-sional procedures after a catastrophic event, assuch procedures would allow the House to goforward, the commission believes that thisprocess would undermine the legitimacy ofCongress. It would open any congressionalaction to constitutional challenge at a time whenthe legitimacy of our institutions is paramount.

The commission does recommend that it is nec-essary to fill vacancies expeditiously with tem-porary appointments and that there is merit tothe method of members indicating who wouldsucceed them in the case of a catastrophe. Theonly way to effect this change, however, is byamending the Constitution.

Arguments againstTemporaryAppointmentsThe People’s House: Appointmentswould Change the DemocraticCharacter of the House

The most substantial argument against a consti-tutional amendment to allow temporaryappointments to fill mass vacancies is that itwould change the character of the House ofRepresentatives. The House of Representativesis rightly called the “people’s house,” as it isthe representative body closest to the people

with elections held every two years. The demo-cratic character of the House is also found inthe fact that the people have elected everymember of the House, while many Senatorshave been appointed.

The commission’s recommended constitutionalamendment is sensitive to preserving the char-acter of the House in two ways.

First, in the case of mass vacancies, large por-tions of the country would be unrepresented formany months at a time when momentous deci-sions would be made. The House’s fundamentalcharacter as the “people’s house” rests prima-rily on the fact that it represents all the people,with each member representing a roughly equalnumber of people. The Senate, on the otherhand, represents the people through the states.An individual senator from California representsover sixty times the number of people that arerepresented by a senator from Wyoming, a vastcontrast to the equal representation of theHouse. If mass vacancies were not filled after acatastrophic attack, a few representatives repre-senting only their constituents would act in thename of all the people. Mass vacancies distortthe representative role of Congress. While theelected character of the House is extremelyimportant, the principle that all the peopleshould be equally represented is essential to itsdemocratic character.

Second, the commission considered but does nottake a position on whether temporary appoint-ments should be made to fill vacancies in theHouse under ordinary circumstances like theprocedure currently in effect for the Senate.Instead, we note that it is essential that tempo-rary appointments to fill vacancies in the House

Preserving Our Institutions22

be made in the case of mass vacancies. We rec-ommend that a constitutional amendmentshould allow Congress to set the circumstancesunder which temporary appointments shalloccur. Given the strong opinions of many mem-bers of Congress that appointments for routinevacancies would change the character of the“people’s house,” it is likely that Congresswould choose to fill vacancies with appoint-ments only in the extraordinary case of manyvacancies at one time. Under this system, theseveral seats in the House of Representativesthat become vacant each Congress would con-tinue to be filled by special elections. Theappointments system would be insuranceagainst a catastrophic attack. The bottom line isthat the commission favors putting the decisionabout the exact circumstances for filling vacan-cies in Congress’s hands.

The Potential forPoliticization and Changing thePartisan Balance of Power

During the commission’s deliberations, weheard the concern that the appointment processwould become politicized and the balance ofpolitical power would illegitimately shift fromone party to another.

This concern is related to the question of whodesignates temporary appointments and whatlimitations are placed on those appointments. Inthe Senate, governors have nearly alwaysappointed members of their own party as tempo-rary replacements to fill vacant Senate seats.Consequently, when a governor is of the oppositeparty of the senator who vacated a seat, the seatswitches from one party to the other, at least

until a special election is held. House membersfear a scenario in which a governor fills vacan-cies with members of his or her party. The like-lihood of this is much greater in the House thanin the Senate, as governors and senators havethe same constituencies, but House membersmay represent parts of a state that are differentfrom the dominant political makeup of the state.If for example, the entire California delegationwas killed by a terrorist attack, the Democraticgovernor might appoint Democrats to all fifty-three seats, changing twenty seats fromRepublican to Democrat. Similarly, if the Texasdelegation was killed in an attack, theRepublican governor might appoint Repub-licans to all thirty-two seats, changing seventeenseats from Democrat to Republican.

The commission understands the concern aboutthe change in partisan balance after an attack. Itdoes not, however, recommend a requirementthat a temporary appointee be of the same partyas the member who vacated the seat. There areseveral reasons the commission does not recom-mend such action. First, in the event of a devas-tating attack, the commission feels thatgovernors would not try to play politics in a timeof national crisis. Second, the system of requir-ing appointments of a particular political partyhas not worked in practice. Certain governmentcommissions require a specified number ofmembers of each party to act as commissioners.In practice, these restrictions have been delib-erately flouted. Appointees have declared them-selves to be affiliated with one party to get theappointment even though their true allegiance iswith the other party. Finally, ideology must alsobe considered. It would be easy for a governor toreplace a liberal Democrat with a conservativeone or a conservative Republican with a liberal

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one, respecting party orientation but not theunderlying views of the member who held thevacated seat. Further, a party provision wouldpreclude those individuals who declare them-selves to be independent from serving as a tem-porary appointee.

If the constitutional amendment, or implement-ing legislation, addresses the issue of the politi-cal party of potential appointees, thecommission recommends a system where mem-bers of Congress draw up a list in advance ofthose who might be appointed as temporary suc-cessors. This was a familiar Cold War-era provi-sion of states such as Delaware (see AppendixVII). Presumably, members of Congress wouldchoose successors who shared their politicalviews, and the resulting Congress would notshift in party or political philosophy. The com-mission, however, also supports a simpleappointment of replacements by a governorbecause it believes that there would be littlepolitical gamesmanship in the crisis atmosphereof a catastrophic attack. A fuller discussion ofthe merits of these two types of appointments isfound in a subsequent section on who shouldappoint temporary replacements.

Response to the Argument fora More Limited ConstitutionalAmendment Dealing Only withVacancies Caused by Death not Incapacity

The commission recommends a constitutionalamendment to address mass vacancies in theHouse and mass incapacitation in the Houseand Senate. Mass incapacitation affects both theHouse and the Senate, making it insufficient for

the House to simply adopt the Senate’s methodfor filling vacancies (i.e., gubernatorial appoint-ments to fill vacancies). A constitutional amend-ment must address the temporary vacanciescaused by severely injured representatives andsenators unable to perform their duties.

The Form of aConstitutionalAmendmentA constitutional amendment that is consistent withthe commission’s recommendations could take anumber of forms. There are specific issues thatmust be remedied, but these issues could beaddressed in the amendment itself or in legislativelanguage that accompanies a more general amend-ment. The commission prefers that the amendmentbe concise, granting Congress the power withincertain broad limits to legislate provisions fortemporary appointments to fill vacancies.

The simplest amendment might take this form:

Congress shall have the power to regulate bylaw the filling of vacancies that may occur inthe House of Representatives and Senate inthe event that a substantial number of mem-bers are killed or incapacitated (see alsoamendment proposal by Michael Glennon-Appendix VI).

Such an amendment would give Congress thepower to legislatively handle many of the intri-cate problems of filling vacancies. In this case,the legislation would have to answer a number ofquestions: Who would make the appointments?What would be the threshold for a “substantial”

Preserving Our Institutions24

number of members? What constitutes incapac-ity and who decides when that incapacity islifted? Would there be time limits on the appoint-ments? Who would be eligible to be appointed?

At the other end of the spectrum is an amend-ment that lays out all the details in the amend-ment itself. For example, an amendmentproposed by Norman Ornstein, senior counselorto the commission, reads as follows:

Section 1. In the event of an emergency, theexecutive authority of each state shall deter-mine the condition of its Representatives andSenators. If the offices of a majority of theRepresentatives apportioned to that state orof both of the Senators are vacant or occu-pied by members unable to discharge thepowers and duties of their office, the execu-tive authority of that state shall issue aproclamation to that effect. The proclamationshall be sent to the Speaker of the House, thepresident of the Senate and other officersthat shall be specified by law. If within a […]-day period, executive authorities of themajority of states have issued such a procla-mation, an emergency appointment authorityshall commence, whereby the executiveauthority shall make temporary appoint-ments to fill vacancies in the House ofRepresentatives and make appointments ofacting members to discharge the function ofRepresentatives and Senators unable to per-form their duties, while their disability per-sists. The emergency appointment authorityshall remain in effect until the end of thenext session.

Section 2. In accordance with the emergencyappointment procedure in this article, each

member of the House of Representatives andeach Senator shall designate in advance notfewer than 3 nor more than 7 emergencyinterim successors to the member’s powersand duties. All designated interim successorsshall meet the qualifications for the office sodesignated. Each member shall review and, asnecessary, promptly revise the designations ofemergency interim successors to insure that atall times there are at least 3 such qualifiedemergency interim successors. Members andSenators shall submit their lists of designatedsuccessors to the Speaker of the House, thepresident of the Senate and the executiveauthority of their state.

Section 3. Upon commencement of the emer-gency authority provided for by this article,the Executive Authority of each State shallappoint Temporary Members to fill vacanciesin the House of Representatives, selectingfrom the list of designated successors. Forthe period of their appointment, TemporaryMembers shall be members of the House ofRepresentatives for all purposes under thisConstitution, the laws made in pursuancethereof, and the rules of the House ofRepresentatives. The appointment of aTemporary Member shall end upon the fillingof the vacancy by election.

Section 4. In the case of a vacancy in theHouse of Representatives under this article,the writ of election that shall issue underART. 1 of this Constitution shall provide forthe filling of the vacancy within [.........]days of its happening, except that if a regu-larly scheduled election for the office will beheld during such period or [........] daysthereafter, no special election shall be held

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and the member elected in such regularlyscheduled general election shall fill thevacancy upon election.

Section 5. In the case of a Representative,who is unable to discharge his or her duties,the executive authority in each state shall,under the emergency authority of this article,appoint as an Acting Member an individual,selecting from the list of designated succes-sors, to discharge the powers and duties of aRepresentative who is unable to dischargethose functions. The appointment of an ActingMember shall end upon the transmission tothe Speaker or other Officer designated by theHouse of Representatives an affirmation inwriting by the member that no inability exists.Upon the transmission of the affirmation themember shall resume all the powers andduties of the Office.

Section 6. In the case of a Senator, who isunable to discharge his or her duties, theexecutive authority in each state shall, underthe emergency authority of this article,appoint as an Acting Senator an individual,selecting from the list of designated succes-sors, to discharge the powers and duties of aSenator who is unable to discharge thosefunctions. The appointment of an ActingSenator shall end upon the transmission tothe president of the Senate or other Officerdesignated by the Senate an affirmation inwriting by the Senator that no inability exists.Upon the transmission of the affirmation theSenator shall resume all the powers andduties of the Office.

Finally, there are many possible amendmentsthat would specify certain areas that Congressmight fill in with legislation.

Congress shall have the power to regulate bylaw the filling of vacancies that may occur inthe House of Representatives and Senate inthe event that a substantial number of mem-bers are killed or incapacitated. Provided thatCongress shall not define a substantialnumber as less than 20 percent of eitherchamber, provided that incapacitated mem-bers shall be allowed to return to their seatsupon proof of their fitness for office.

Forty-two years ago, one of our commissioners,Nicholas Katzenbach, then Assistant AttorneyGeneral, Office of Legal Counsel, testified beforethe House Judiciary Committee on several pro-posed constitutional amendments to provide fortemporary appointments to fill House vacancies.In response to a question from a member of thecommittee, Katzenbach suggested the “possibil-ity of a relatively short constitutional amendmentenabling Congress by legislation to provide forvarious contingencies.” The advantage of suchan approach would be to “give a desirable flexi-bility within the constitutional framework deter-mined to be correct and would not mean everytime you had a problem of this kind you had aconstitutional question. It would be capable ofclarification by legislation.”3 The commissionstrongly agrees with these comments.

Preserving Our Institutions26

3 Constitutional Amendments for Continuity of RepresentativeGovernment During Emergency: Hearing on H.J. Res. 29, etal. Before Subcommittee No.2 of the House Committee on theJudiciary, 87th Cong., 1st Sess. (1961), p.25.

Essential Elementsfor TemporaryAppointments

Defining the Threshold

What should the threshold be for triggering anemergency procedure to allow for temporaryappointments? Who should determine if thethreshold is met? These two questions are sig-nificant because the commission believes thattemporary appointments are essential underemergency conditions, but not in the event ofroutine vacancies.

The question of the threshold weighs two com-peting priorities. On the one hand, the thresholdfor vacancies should be sufficiently high to con-stitute an emergency where extraordinary meansfor ensuring the continuity of Congress areneeded. On the other hand, the threshold shouldnot be so high as to prevent Congress from func-tioning in a normal manner. The commissiondoes not set a particular number of vacanciesthat triggers enactment of the emergency provi-sions, but it should fall between 15 and 50 per-cent of seats vacant. If more than 50 percent ofthe seats of one chamber are vacant, the quorumquestion looms large. Conversely, it should belarger than fifteen percent, as Congress couldadequately function with even fairly significantnumbers of vacancies. The commission supportsa determination of the threshold not only on thebasis of an absolute number of vacancies, butalso by the determination that there have beensignificant numbers of vacancies in state dele-gations. For example, the temporary appoint-ment provision might commence when a

majority of the state delegations have each lostone quarter or one half of their membership.

Who should determine the threshold has beenmet? A number of constitutional amendmentswere proposed and three passed the Senatebetween 1947 and 1965. The amendments tookdifferent approaches as to who would count thedeaths or incapacitations to determine if thethreshold had been met. Who, for example,would determine that one-quarter of the mem-bership of the House of Representatives wasdead or incapacitated? There are a number ofoptions: the remainder of Congress, an inde-pendent officer, an agency, the president, andthe courts. Most of these options, however, havetwo serious drawbacks. First, the determinationof an exact number may be extremely difficult.In the confusion after an attack, it might be dif-ficult to identify the dead and the missing.Determination of incapacity could be even moresubjective. It is possible that there would be asignificant delay in determining that the emer-gency procedure for appointments would takeeffect, and the purpose of having such a proce-dure in the first place is to hasten the replen-ishment of Congress after an attack. Second, theone who is designated to determine if thethreshold is met may be indisposed after anattack, particularly if it is a Washington figureor body. For example, if the remainder ofCongress is to determine whether the thresholdhas been met, and an attack wipes out three-quarters of the members, then Congress itselfmay be incapable of meeting its quorumrequirement to determine whether the thresholdhas been met. Or, under a looser quorum inter-pretation, a small number of members might betasked with making that decision, therefore

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raising questions of legitimacy. Another pointfor consideration is that any delegation of thisfunction to the executive or judicial brancheswould raise separation of powers issues.

The commission recommends that governorssurvey their own state’s delegation to determineif a sizable fraction of their state’s representa-tives are dead or incapacitated. Once a numberof governors, say a majority, make such a deter-mination, then the emergency provision wouldbe triggered. The commission recommends thisapproach for a variety of reasons. First, gover-nors are not Washington-based figures andwould likely survive an attack. If some do notsurvive, there are established lines of succes-sion in the states. Second, it is much easier todetermine if a fraction of a state delegation isdead or incapacitated than it would be to surveyloss within the whole of Congress. Third, sincethis proposal requires a declaration by a numberof governors, it would take the decision-makingpower out of one hand and limit the ability forpolitical gamesmanship.

Who Should Make TemporaryAppointments?

The commission has considered a number ofoptions for who should make temporary appoint-ments, two of which it favors. Either governorsshould make the appointments, or the appoint-ments should be made from a list drawn up inadvance by the member who vacates the seat. Athird alternative is to combine the two methods.Governors would have a limited choice—theycould appoint anyone on the list of successorsdrawn up by the member.

The commission’s primary objective is thatappointments be made swiftly, legitimately, anddecisively. The commission received numeroussuggestions on this matter, including many pro-posals submitted by concerned citizens throughour website and through the results of a poll con-ducted by Reader’s Digest. Some of the sugges-tions made intuitive sense, but we did not feelthey met all three criteria. Examples includeappointments made by a committee of state leg-islators who represent parts of the district of thevacated seat, or by the state legislatures, or theremainder of Congress. California, for example,has a provision for emergencies where theremaining members of the legislature appointtemporary replacements. These options allow forlocal input in the selection of a replacementmember, but ultimately, they are unwieldy andmay delay the appointment. State legislaturesmay not be in session. Legislatures can dead-lock on a choice, as in the 19th century whenstate legislatures selected U.S. Senators. Itwould also be complicated to assemble a groupof legislators representing the district. Each dis-trict would have a different number of peoplerepresenting parts of the district. How muchweight would the vote of each person be given?

The president or the courts could make theappointments, but the commission believes thatdue to the separation of powers, this wouldundermine the legitimacy of the selection.Furthermore, with the president and theSupreme Court also based in Washington, itwould be imprudent to leave the appointmentpower in their hands.

The two options the commission recommendsare gubernatorial appointment or appointment

Preserving Our Institutions28

from a list drawn up in advance by themember. Appointments of either type could bemade quickly. They would be made by legiti-mate authority: by the highest ranking consti-tutional officer in the state or by the deceasedor incapacitated member. Both of these meth-ods of selection would also be decisive, asthere would be no committee or body thatwould split its vote for a nominee. A combina-tion of the two methods would also meet thecommission’s criteria.

How Long Should Appointments Last?

The commission respects the differences inthe political cultures of states and the time ittakes to fill vacancies by special election. Inthe case of temporary appointments to fillvacated seats, we believe that the appointmentshould last until the special election is held tofill the seat, but that the special election shallbe held within 120 days of the vacancy. This120-day window allows states to have primar-ies if they choose, but it emphasizes theimportance of placing an elected member inthe seat with dispatch.

In the case of temporary appointments thatstand in for incapacitated members, theappointment should last until the memberrecovers, the member dies or resigns and aspecial election is held to fill the seat, or untilthe end of the term of office. Such a timeframeis warranted because the circumstances ofincapacitation may vary widely and becausethe commission finds it is essential for themember to return to his or her seat if he or sherecovers during the term.

Members Return FromIncapacitation on Their OwnDeclaration

The commission recommends that members whoare declared incapacitated shall return to theirseats when they declare themselves fit to returnto office. The commission believes that the bestscenario is for original members to return totheir seats if recovered.

Another option would be for an independentbody to declare members incapacitated and thento declare them fit for office. But this option isunwieldy, subject to politicization and challenge,and potentially very slow. If we allow governorsto declare members of Congress temporarilyincapacitated, there should be a safeguard tomembers that they can return on their own dec-laration as soon as they are recovered.

Should Temporary Appointeesbe Eligible to Run Again?

The commission recommends that temporaryappointees be able to seek the office they hold ina special election or in a future general election.

There is some concern that a temporary appoint-ment will lead inevitably to the election of thetemporary member. This would cut against thecharacter of the House that all representativesare elected, for appointed members would havea leg up on others who would seek the seat. Thisincumbent advantage could be avoided if tem-porary appointments were barred from runningin a special election or in the next general elec-tion for office. The commission opposes this

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plan for several reasons. First, the evidence inappointments made to the Senate does not sup-port the thesis that appointed members win elec-tions. In fact, only fifty percent of senatorsappointed in recent years won subsequent spe-cial elections (see Appendix VIII). Second, it isan unwise precedent to limit within theConstitution the eligibility of certain individualswho meet all qualifications for office. Third, iftemporary appointees were not eligible to run foroffice, some of the better candidates might notchoose to serve as temporary appointments, thusdepriving the nation of the best political leader-ship at the time it is needed most.

Constitutional AmendmentShould be Ratified in Two Years

The commission hopes that we never need to usethe provisions of a constitutional amendment toallow Congress to reconstitute itself after an

attack. It is, however, imperative to enact suchan amendment expeditiously for two reasons.First, it is necessary to fill the hole in our con-stitutional fabric to ensure that the institution ofCongress could continue after a catastrophicattack. Second, the enactment of an amendmentwould be a deterrent to an attack on Congress.Terrorists look for the weakest security linkwhere they could inflict the most harm. Weshould pass an amendment to send the messagethat we have addressed issues in the continuityof government and that an attack on Congresswould not produce chaos and inaction.

In modern times, it has become customary to adda proviso to constitutional amendments that theymust be ratified by three-quarters of the stateswithin seven years. Given the dangerous times welive in, the commission believes that a speedy rat-ification is essential. We propose that the statesbe given two years to ratify the amendment.

Preserving Our Institutions30

Congress is the first branch of government, itspowers set out in ARTICLE 1 of the Constitution.It is the branch closest to the people. Yet, it isthe most constitutionally vulnerable of the threebranches to a massive disruption from a terroristattack. Our current constitutional frameworkdoes not allow the House of Representatives tobe reconstituted quickly after a large number ofdeaths. The only method for filling vacancies isby special election, which takes many months tocomplete. In addition, neither the Senate nor theHouse is prepared for the possibility of largenumbers of their members to be alive, butseverely incapacitated and unable to performtheir duties. Either of these scenarios couldresult in no Congress in the months after anattack, or one that is unrepresentative and ofquestionable legitimacy. In addition, the conti-nuity of the Congress and the presidency areintertwined because the Presidential SuccessionAct includes the Speaker of the House and thePresident Pro Tempore directly after the presi-dent and vice president in the line of succes-sion. With a badly wounded Congress, it mightmean that no Speaker or President Pro Temporecould step forward to fill the presidency, or itcould mean that a Speaker or President Pro

Tempore newly elected by a handful of memberswould assume the presidency at a time of crisisand serve the entire term. More problematicthan any of these particular scenarios is the con-fusion that would occur after an attack andpotential conflicts between competing leaderstrying to fill a vacuum.

The commission believes that it is essential toaddress this problem. In formulating this reportthe commission consulted numerous experts andcurrent and former officeholders. The exactdetails of a solution are less important than thatthe problem be addressed seriously and expedi-tiously. The only way to address the problem ofrestoring Congress after a catastrophic attack isto amend the Constitution to allow immediatetemporary appointments to Congress until spe-cial elections can be held to fill vacancies oruntil matters of incapacitation can be resolved.It is our hope that such an emergency provisionof the Constitution will never be utilized, but itis our best insurance against the chaotic after-math of an attack. It serves as a warning to thosewho would seek to topple the United States thatour institutions are stronger than those whowould try to destroy them.

The Congress 31

Conclusion

Inaugural Press ConferenceThursday, September 19, 2002American Enterprise Institute1150 Seventeenth Street, N.W.Washington, D.C. 20036

Participants:Lloyd Cutler, Wilmer, Cutler & PickeringThomas Foley, Akin, Gump, Strauss, Hauer &

Feld, LLPThomas Mann, Brookings InstitutionNorman Ornstein, American Enterprise Institute

First Commission HearingMonday, September 23, 2002 House Administration Committee1310 Longworth House Office BuildingCapitol Hill

Morning Session Witnesses appearing before the commission:Michael Davidson, former Senate Legal CounselJames Duff, former Administrative Assistant to

Chief Justice RehnquistJohn Fortier, American Enterprise InstituteThomas Mann, Brookings InstitutionNorman Ornstein, American Enterprise Institute

Afternoon Session Witnesses appearing before the commission:Representative Brian Baird (D-WA)Representative Chris Cox (R-CA)Norman Ornstein, American Enterprise Institute Representative Vic Snyder (D-AR)

Second Commission HearingWednesday, October 16, 2002The Brookings Institution1775 Massachusetts Avenue, N.W.Washington, D.C. 20036

Witnesses appearing before the commission:Michael Davidson, former Senate Legal CounselJohn Fortier, American Enterprise InstituteAlton Frye, Council on Foreign Relations Michael Glennon, The Fletcher School,

Tufts UniversityRepresentative James Langevin (D-RI)Thomas Mann, Brookings InstitutionRandy Moss, Wilmer, Cutler & PickeringNorman Ornstein, American Enterprise InstituteDonald Wolfensberger, Woodrow Wilson

International Center for Scholars

The Congress 33

Appendix I

Commission-Sponsored Public Events

Transcripts for all events are available at www.continuityofgovernment.org

Mr. Yosri Fouda (Al-Jazeera): “The White House was in the list, but then waslater taken off the list for navigation reasons,according to Khalid Sheik Mohammed.”

Kate Seeyle (NPR): “And replaced by the U.S. Capitol, adds Fouda,the fourth target presumably of the hijacked jetthat crashed in Pennsylvania.”Transcript: “Two Senior Al-Qaeda Leaders GiveInterviews to Al-Jazeera,” Morning Edition(10:00 AM ET) National Public Radio,September 13, 2002.

The two terrorist plotters [Khalid SheikhMohammed and Ramzi Binalshibh] reveal:“The fourth target of the hijackers was CapitolHill and not the White House. United Airlinesflight 93 was heading for Congress when the pas-sengers overpowered the terrorists and the planecrashed into the Pennsylvanian countryside.” Nick Fielding, “Masterminds of 9/11 revealterror secrets,” Sunday Times (London),September 8, 2002, p. 1.

“About three weeks before September 11, targetswere assigned to four teams, with three of thembearing a code name: The U.S. Capitol wascalled ‘The Faculty of Law;’ the Pentagonbecame ‘The Faculty of Fine Arts;’ and the NorthTower of the World Trade Center was code-namedby Atta as ‘The Faculty of Town Planning.’” “Al-Jazeera Offers Accounts of 9/11 Planning,”http://cnn.worldnews.printthis.cliability.com,September 12, 2002.

Preserving Our Institutions34

Appendix II

From an interview regarding the plan for the September 11th attacks:

The Capitol as a September 11th Target

Constitutional provision forfilling vacancies in the Houseof RepresentativesArticle 1, section 2, clause 4

When vacancies happen in the Representationfrom any State, the Executive Authority thereofshall issue Writs of Election to fill such Vacancies.

Constitutional provision forfilling vacancies in the SenateAmendment XVII Passed by Congress May 13, 1912. Ratified April 8, 1913.

The Senate of the United States shall be com-posed of two Senators from each state, electedby the people thereof, for six years; and eachSenator shall have one vote. The electors in eachState shall have the qualifications requisite forelectors of the most numerous branch of theState legislatures.

When vacancies happen in the representation ofany State in the Senate, the executive authorityof such State shall issue writs of election to fillsuch vacancies: Provided, That the legislature ofany State may empower the executive thereof tomake temporary appointments until the peoplefill the vacancies by election as the legislaturemay direct.

This amendment shall not be so construed as toaffect the election or term of any Senator chosenbefore it becomes valid as part of theConstitution.

Constitutional provision forthe Quorum requirementArticle 1, section 5, clause 1

Section 5. …and a Majority of each [House]shall constitute a Quorum to do Business; but asmaller Number may adjourn from day to day,and may be authorized to compel the Attendanceof absent Members, in such Manner, and undersuch Penalties as each House may provide.

The Congress 35

Appendix IIIRelevant Constitutional Provisions

* Article I, section 3, of the Constitution was modified by the 17th Amendment.

Representative Date of Primary General Date VacancyCongress Open Seat Who Died Vacancy Electiona Election Sworn In Successor (days)

99 Louisiana 8th Gillis W. Long 1/20/1985 3/30/1985 4/4/1985 Cathy Long 74

99 New York 6th Joseph P. Addabbo 4/10/1986 5/13/1986b 6/10/1986 7/29/1986 Alton R. Waldon Jr. 110

100 California 5th Sala Burton 2/1/1987 4/7/1987 6/2/1987 6/9/1987 Nancy Pelosi 128

100 Connecticut 4th Stewart B. McKinney 5/7/1987 7/21/1987 8/18/1987 9/9/1987 Christopher Shays 125

100 Virginia 5th Dan Daniel 1/23/1988 6/14/1988 6/21/1988 L. F. Payne 150

100 New Jersey 3rd James J. Howard 3/25/1988 6/7/1988 11/8/1988 1/13/1989 Frank Pallone Jr. 284

100 Illinois 12th Melvin Price 4/22/1988 3/15/1988c 8/9/1988 8/11/1988 Jerry F. Costello 111

100 Tennessee 2nd John J. Duncan 6/21/1988 11/8/1988 1/3/1989 John J. Duncan Jr. 196

100 Alabama 3rd Bill Nichols 12/13/1988 3/7/1989 4/4/1989 4/18/1989 Glen Browder 126

101 Florida 18th Claude Pepper 5/30/1989 8/3/1989 8/29/1989 9/6/1989 Ileana Ros-Lehtinen 99

101 Texas 18th Mickey Leland 8/7/1989 12/9/1989 1/23/1990 Craig Washington 169

101 Mississippi 5th Larkin Smith 8/13/1989 10/3/1989 10/17/1989 10/24/1989 Gene Taylor 72

102 Massachusetts 1st Silvio O. Conte 2/8/1991 4/30/1991 6/4/1991 6/18/1991 John Olver 130

103 Michigan 3rd Paul B. Henry 7/31/1993 11/2/1993 12/7/1993 1/25/1994 Vernon J. Ehlers 178

103 Kentucky 2nd William H. Natcher 3/29/1994 5/24/1994 5/26/1994 Ron Lewis 58

104 Missouri 8th Bill Emerson 6/22/1996 (indep.) 11/5/1996 1/8/1997 Jo Ann Emerson 200

105 Texas 28th Frank Tejada 1/30/1997 3/15/1997 4/12/1997 4/17/1997 Ciro D. Rodriguez 77

105 California 22nd Walter H. Capps 10/28/1997 1/13/1998 3/10/1998 3/17/1998 Lois Capps 140

105 California 44th Sonny Bono 1/5/1998 4/7/1998 4/21/1998 Mary Bono 106

105 New Mexico 1st Steven Schiff 3/25/1998 4/13/1998d 6/23/1998 6/25/1998 Heather Wilson 92

106 California 42nd George E. Brown Jr. 7/15/1999 9/21/1999 11/16/1999 11/18/1999 Joe Baca 126

107 California 32nd Julian C. Dixon 12/8/2000 4/10/2001 6/5/2001 6/7/2001 Diane E. Watson 181

107 Virginia 4th Norman Sisisky 3/29/2001 4/29/2001e 6/19/2001 6/26/2001 J. Randy Forbes 89

107 Massachusetts 9th John Joseph Moakley 5/28/2001 9/11/2001 10/16/2001 10/23/2001 Stephen F. Lynch 148

107 South Carolina 2nd Floyd Spence 8/16/2001 10/30/2001 12/18/2001 12/19/2001 Joe Wilson 125

107 Hawaii 2nd Patsy T. Mink 9/28/2002 11/20/2002 1/7/2003 Ed Casef 101

average length of vacancy caused by death when special election was held 126.4 days

Appendix IV

a If no primary date is given, the state held no primary or the information was unavailable. b No primary election was held, the candidates were selectedby delegation. c Costello had already won the regularly scheduled primary before the death of Price. d Heather Wilson was nominated by convention. e Forbes was nominated by convention. f Case was not sworn into until after a second special election on January 4, 2003. Mink was elected to the 103rdCongress despite her death, but Case won the winner-takes-all election to fill the two years of Mink’s term.

Special Elections in the Case of Death for the United States Houseof Representatives from the 99th to 107th Congress

Alabama Code of Ala. § 17-18-1 through 7 • The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

• If Congress will not be in session prior to thenext general election, no special election is held

AlaskaAlaska Stat. § 15.40.010 through 220• A special general election must be held no

less than 60 days, and no more than 90 days,after a vacancy occurs

• A special primary election must be held noless than 30 days after the vacancy occurs

• If the vacancy occurs less than 60 days beforeor is on or after the date of the primary elec-tion in general election years, no special elec-tion is held

ArizonaA.R.S. § 16-201, § 16-221 through 223,and § 16-342• A special general election must be held no

less than 110 days, and no more than 150days, after the vacancy occurs

• A special primary election must be held noless than 75 days, and no more than 105 days,after the vacancy occurs

• If the vacancy occurs within 6 months of aregularly scheduled general election, no spe-cial election is held

Arkansas A.C.A. § 7-7-105• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

CaliforniaCal Elec Code § 10700• A special election must occur no less than

112 days, and no more than 119 days, afterthe governor issues the writ of election

• The governor must issue the writ of electionno later than 14 days after the vacancy occurs

• If the vacancy occurs within 180 days of aregularly scheduled election, the special elec-tion may coincide with that regularly sched-uled election

In the event of a catastrophe – Cal Elec Code § 10733 (2003)• A special election must occur no less than 56

days, and no more than 63 days, after the gov-ernor issues the writ of election

• If the vacancy occurs within 90 days of a regu-larly scheduled election, the special election maycoincide with the regularly scheduled election

The Congress 37

Appendix VTime Requirements for Filling CongressionalVacancies According to State Laws

ColoradoC.R.S. 1-12-201 through 208• A special election must occur no less than 75

days, and no more than 90 days, after thevacancy occurs

• If the vacancy occurs within 90 days of a reg-ularly scheduled general election, no specialelection is held

ConnecticutConn. Gen. Stat. § 9-211 through 224band § 9-450• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

Delaware15 Del. C. § 7103 through 7112 and 15Del. C. § 7301 through 7306• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

Florida Fla. Stat. § 100.111 • The governor fixes the date of a special first

primary election, a special second primaryelection, and a special election with a mini-mum of 2 weeks between each election

• There is no specification as to when the gov-ernor must issue the writ of election after thevacancy occurs

• If Congress will not be in session prior to thenext general election, the special election maycoincide with the regularly scheduled election

GeorgiaO.C.G.A. § 21-2-540 through 545• A special election must be held no less than

30 days after the governor issues the writof election

• The governor must issue the writ of electionno later than 10 days after the vacancy occurs

HawaiiHRS § 17-2• A special election must be held no less than

60 days after the chief election officer issuesthe writ of election

• There is no specification as to when the chiefelection officer must issue the writ of electionafter the vacancy occurs

IdahoIdaho Code § 34-106, § 34-106, and § 59-911• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

Illinois10 ILCS 5/25-7• A special general election must occur no more

than 115 days after the governor issues thewrit of election

• The governor must issue the writ of electionno later than 5 days after the vacancy occurs

• If the vacancy occurs within 180 days of aregularly scheduled general election, no spe-cial election is held

IndianaBurns Ind. Code Ann. § 3-10-8-1 through9 and § 3-13-3-2• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

• If the vacancy occurs less than 30 days beforea regularly scheduled general election, nospecial election is held

Preserving Our Institutions38

IowaIowa Code § 43.83 and § 69.14• A special election must be held no less than

40 days after the governor issues the writ ofelection

• The governor must issue the writ of electionno later than 5 days after the vacancy occurs

• If Congress will not be in session prior to thenext general election, no special election is held

KansasK.S.A. § 25-3501 through 3505• A special election must be held no less than

45 days, and no more than 60 days, after thegovernor issues the writ of election

• The governor must issue the writ of electionno more than 5 days after the vacancy occurs

• If the vacancy occurs no less than 30 days,and no more than 90 days, before a regularlyscheduled general or primary election, thespecial election coincides with the regularlyscheduled election

KentuckyKRS § 118.720 • The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

LouisianaLa. R.S. 18:1279• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

Maine21-A M.R.S. § 366 and § 392• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

• If the vacancy occurs while Congress is insession, the special election must be held “assoon as reasonably possible”

• If the vacancy occurs when Congress is not insession, the special election must be heldbefore the next regular or called session

MarylandMd. Ann. Code art. 33, § 8-710• A special general election must be held no

less than 72 days after the governor issues thewrit of election

• A special primary election must be held noless than 36 days after the governor issues thewrit of election

• The governor must issue the writ of electionno later than 10 days after the vacancy occurs

• If the vacancy occurs less than 60 days beforethe regularly scheduled primary election, nospecial election must be held

MassachusettsALM GL ch. 54, § 140• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

MichiganMCLS § 168.145, § 168.631, and § 168.633• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

• There must be at least 20 days between thespecial primary election and the special gen-eral election

• If the vacancy occurs more than 30 daysbefore a regularly scheduled general election,the special election may coincide with theregularly scheduled election

The Congress 39

MinnesotaMinn. Stat. § 204D.17 through § 204D.27• A special election must be held no more than

28 days after the governor issues the writ ofelection if Congress is in session

• A special primary election must be held nomore than 14 days prior to the special generalelection

• The governor must issue the writ of electionno more than 5 days after the vacancy occursif Congress is in session

• If Congress will not be in session prior tothe next general election, no special electionis required

MississippiMiss. Code Ann. § 23-25-853• A special election must be held no less than

40 days after the governor issues the writ ofelection

• The governor must issue the writ of electionno more than 60 days after the vacancy occurs

Missouri§ 105.030 R.S.Mo.• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

MontanaMont. Code Anno., § 13-25-203 • A special general election must be held no

less than 75 days, and no more than 90 days,after a vacancy occurs

• If the vacancy occurs within 150 days of aregularly scheduled primary election orbetween the primary and general elections inodd numbered years, the special electioncoincides with the regularly scheduled pri-mary or general election

• If the vacancy occurs between the regularlyscheduled primary and the general election ineven numbered years, the candidate electedto the office for the succeeding full term shallimmediately take office

NebraskaR.R.S. Neb. § 32-564• A special general election must be held no

less than 48 days, and no more than 58 days,after the governor issues the writ of election

• A special primary election must be held noless than 20 days, and no more than 30 days,after the governor issues the writ of election

• There is no specification as to when the gov-ernor must issue the writ of election after thevacancy occurs

• If Congress will not be in session prior tothe next general election, no special electionis held

NevadaThe state code does not specificallyaddress vacancies in the U.S. House ofRepresentatives• If a vacancy occurs in the House of

Representatives, the state defers to U.S.Constitution Article 1, Section 2

• The governor shall issue a writ of election

New HampshireRSA § 661:6• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

New JerseyN.J. Stat. § 19:27-6• A special general election must be held no less

than 111 days, and no more than 123 days,after the governor issues the writ of election

Preserving Our Institutions40

• A special primary election must be held noless than 65 days, and no more than 71 days,after the governor issues the writ of election

• There is no specification as to when the gov-ernor must issue the writ of election after thevacancy occurs

• If the vacancy occurs within 65 days priorto the day for holding the next primaryelection for the general election, the specialelection coincides with the regularly sched-uled election

New MexicoN.M. Stat. Ann. § 1-15-18.1• A special election must be held no less than

84 days, and no more than 91 days, after avacancy occurs

• Each qualified political party may nominate acandidate to fill the vacancy at least 56 dayspreceding the special election

• The governor must issue the writ of election10 days after the vacancy occurs

• If the vacancy occurs between the regularlyscheduled primary and the general election,the special election coincides with the regu-larly scheduled election

New YorkNY CLS Pub O § 42• A special election must be held no less than

30 days, and no more than 40 days, after thegovernor issues the writ of election

• There is no specification as to when the gov-ernor must issue the writ of election after thevacancy occurs

• If the vacancy occurs after the first day of Julyof the last year of the term of office, no specialelection is held

North CarolinaN.C. Gen. Stat. § 163-13• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

North DakotaN.D. Cent. Code § 54-07-01• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

OhioORC Ann. 3521.03• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

• A special primary election must be held noless than 15 days prior to the special generalelection

Oklahoma26 Okl. St. § 12-101• The governor must issue the writ of election

no more than 30 days after the vacancy occurs• If the vacancy occurs after March 1 of an

even numbered year, no special election isheld, but the candidate elected to the officefor the succeeding full term shall beappointed by the Governor to fill the unex-pired term

OregonORS § 188.120• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

• If the vacancy occurs after the 62nd daybefore the general election but on or beforethe general election, and if the term of thatoffice is not regularly filled at that election,

The Congress 41

the special election is held as soon as practi-cable after the general election

Pennsylvania25 P.S. § 2777• A special election must be held no less than

60 days after the governor issues the writof election

• The governor must issue the writ of electionno more than 10 days after the vacancy occurs

• If Congress will not be in session prior to thenext general election, no special election is held

Rhode IslandR.I. Gen. Laws § 17-4-8• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

• If the vacancy occurs between April 1 andOctober 1 in an even year, the special electionmay coincide with the next regularly sched-uled general election

South CarolinaS.C. Code Ann. § 7-13-190• A special election must be held on the 18th

Tuesday after a vacancy occurs• A special primary election must be held on

the 11th Tuesday after a vacancy occurs• A special runoff primary must be held on the

13th Tuesday after a vacancy occurs• If the 18th Tuesday after the vacancy occurs is

within 60 days of a regularly scheduled gen-eral election, the special election coincideswith the regularly scheduled election

South DakotaS.D. Codified Laws § 12-11-1• A special election must be held no less than

80 days, and no more than 90 days, after avacancy occurs

• The governor must issue the writ of electionno later than 10 days after the vacancy occurs

• If the vacancy occurs within 6 months of aregularly scheduled primary or general elec-tion, the special election coincides with theregularly scheduled election

TennesseeTenn. Code Ann. § 2-14-102 and § 2-16-101• A special general election must be held no less

than 100 days, and no more than 107 days,after the governor issues the writ of election

• A special primary election must be held noless than 55 days, and no more than 60 days,after the governor issues the writ of election

• The governor must issue the writ of electionno later than 10 days after the vacancy occurs

• If the vacancy occurs within 30 days of a reg-ularly scheduled primary or general election,the special election may coincide with theregularly scheduled election

TexasTex. Elec. Code § 203.001 through 005and § 204.021 • A special general election must be held no

less than 36 days, and no more than 50 days,after the governor issues the writ of election

• There is no specification as to when the gov-ernor must issue the writ of election after thevacancy occurs

UtahUtah Code Ann. § 20A-1-502• The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

Preserving Our Institutions42

Vermont17 V.S.A. § 2352 and § 2621• A special general election must be held no

more than 3 months after a vacancy occurs• A special primary election must be held no

less than 40 days, and no more than 46 days,prior to the date of the special general election

• If the vacancy occurs within 6 months of aregularly scheduled general election, the spe-cial election may coincide with the regularlyscheduled election

VirginiaVa. Code Ann. § 24.2-209 • The governor decides the date of the special

election; the State Code does not indicate anyspecific timeframe

WashingtonRev. Code Wash. (ARCW) § 29.68.080 • A special general election must be held no

less than 90 days after the governor issues thewrit of election

• A special primary election must be held no lessthan 30 days before the special general election

• The governor must issue the writ of electionno later than 10 days after the vacancy occurs

• If the vacancy occurs within 6 months of aregularly scheduled general election andbefore the second Friday following the close ofthe filing period for that general election, thespecial primary and general elections coin-cide with the regularly scheduled election

West VirginiaW. Va. Code § 3-10-1 through 4• A special general election must be held no

less than 30 days, and no more than 75 days,after the governor issues the writ of election

• The governor must issue the writ of electionno later than 10 days after the vacancy occurs

WisconsinWis. Stat. § 8.50• A special election must be held no less than

62 days, and no more than 77 days, after thechief election officer issues the writ of election

• If a primary election is required, it must beheld 28 days before the special election

• There is no specification as to when the chiefelection officer must issue the writ of electionafter the vacancy occurs

• If the vacancy occurs between the secondTuesday in May and the second Tuesday inJuly in an even numbered year, the specialprimary and general elections shall be filledat the regularly scheduled election

WyomingWyo. Stat. § 22-18-103 through 105• A special general election must be held no

more than 40 days after a vacancy occurs• The governor must issue the writ of election

no later than 5 days after the vacancy occurs • If the vacancy occurs within 6 months of a

regularly scheduled general election, thevacancy shall be filled at the regularly sched-uled general election

The Congress 43

Proposal by: Senator KnowlandS.J. Res. 39 (1954)

Proposing an amendment to the Constitutiongiving governors the power to make temporaryappointments for vacancies that exist withinsixty days after a proclamation from thePresident, certified by the Speaker, stating thatthere are more than 145 vacancies in the Houseof Representatives. Temporary appointees wouldserve until their seats were filled by election.This amendment passed the Senate by a vote of70-1 on June 4, 1954.

86th CONGRESS — 1ST SessionS.J. RES. 39

IN THE SENATE OF THE UNITED STATESFEBRUARY 6, 1953

Mr. KNOWLAND introduced the following jointresolution; which was read and referred to theCommittee on the Judiciary

JOINT RESOLUTIONProposing an amendment to the Constitution ofthe United States to enable the Congress, in aid

of the common defense, to function effectively intime of emergency or disaster

Resolved by the Senate and House ofRepresentatives of the United States of America inCongress assembled (two-thirds of each Houseconcurring therein), That the following article isproposed as an amendment to the Constitution ofthe United States, which shall be valid to allintents and purposes as part of the Constitutionwhen ratified by the legislatures of three-fourthsof the several States:

Article—SECTION 1. Whenever, in time of any nationalemergency or national disaster, the number ofvacancies in the House of Representatives shallexceed one hundred and forty-five, the Speakerof the House of Representatives shall certify thatfact to the President. In case there is no Speaker,or in the event of the inability of the Speaker todischarge the powers and duties of his office,such certification shall be made by the Clerk ofthe House of Representatives. Upon receipt ofsuch certification, the President shall issue aproclamation declaring such fact. The executiveauthority of each State shall then have power tomake temporary appointments to fill any vacan-

Preserving Our Institutions44

Appendix VI

Text of Proposed Constitutional Amendments

cies in the representation of his State in theHouse of Representatives which may exist atany time within sixty days after the insurance ofsuch a proclamation. Any person temporarilyappointed to any such vacancy shall serve untilthe people fill the vacancy by election as thelegislature may direct.

SECTION 2. This article shall be inoperativeunless it shall have been ratified as an amend-ment to the Constitution by the legislatures ofthree-fourths of the several States, as providedin the Constitution, within seven years from thedate of the submission hereof to the States bythe Congress.

Proposal by: Senator KefauverS.J. Res. 8 (1955)

Proposing an amendment to the Constitutiongiving governors the power to make temporaryappointments when there is more than a major-ity of vacancies in either House. Temporaryappointees would serve until their seats werefilled by election. This amendment passed theSenate by a vote of 76-3 on May 19, 1955.

84th CONGRESS — 1ST SessionS.J. RES. 8

IN THE SENATE OF THE UNITED STATESJANUARY 6, 1954

Mr. KEFAUVER introduced the following jointresolution; which was read and referred to theCommittee on the Judiciary

JOINT RESOLUTIONTo amend the Constitution to authorize gover-nors to fill temporary vacancies in the Congresscaused by a disaster.

Resolved by the Senate and House ofRepresentatives of the United States of America inCongress assembled (two-thirds of each Houseconcurring therein), That in the event of a disas-ter that causes more than a majority of vacanciesin the representation of the several States in theSenate and in the House of Representatives theexecutives thereof shall make temporary appoint-ments to fill such vacancies, until the people ofthe States shall fill them by election. Pendingsuch appointments, a majority of Members ofeach House duly chosen, sworn, and living shallconstitute a quorum to do business.

Article—SECTION 2. This article shall be inoperativeunless it shall have been ratified as an amend-ment to the Constitution by the legislatures ofthree-fourths of the several States within sevenyears from the date of its submission to theStates by the Congress.

Proposal by: Senator KefauverS.J. Res. 39 (1960)

Proposing an amendment to the Constitutiongiving governors the power to make temporaryappointments when the total number of vacan-cies in the House of Representatives exceedshalf of its membership. Following this occur-rence, the governor has sixty days to make hisappointments that will ultimately be filled byelection. This amendment passed the Senate bya vote of 70-18 on February 2, 1960.

The Congress 45

86TH CONGRESS — 1ST SessionS.J. RES. 39

IN THE SENATE OF THE UNITED STATESJANUARY 29, 1959

Mr. KEFAUVER, and Mr. DODD, introduced thefollowing joint resolution; which was read andreferred to the Committee on the Judiciary

JOINT RESOLUTIONProposing to authorize Governors to fill tempo-rary vacancies in the House of Representatives,to abolish tax and property qualifications forelectors in Federal elections etc.

[Relevant Section]On any date that the total number of vacanciesin the House of Representatives exceeds half ofthe authorized membership thereof, and for aperiod of sixty days thereafter, the executiveauthority of each State shall have power to maketemporary appointments to fill any vacancies,including those happening during such period,in the representation from his State in the Houseof Representatives. Any person temporarilyappointed to fill any such vacancy shall serveuntil the people fill the vacancy by election asprovided for by article I, section 2, of theConstitution.

Proposal by: Representative BairdH.J. Res. 67 (2001)

Proposing an amendment to the Constitution ofthe United States regarding the appointment ofindividuals to serve as Members of the House of

Representatives in the event that one quarter ofthe Members are unable to serve at any timebecause of death or incapacity.

107th CONGRESS — 1st SessionH. J. RES. 67

IN THE HOUSE OF REPRESENTATIVESOCTOBER 10, 2001

Mr. BAIRD introduced the following joint reso-lution; which was referred to the Committee onthe Judiciary

JOINT RESOLUTIONProposing an amendment to the Constitution ofthe United States regarding the appointment ofindividuals to serve as Members of the House ofRepresentatives in the event a significantnumber of Members are unable to serve at anytime because of a national emergency.

Resolved by the Senate and House ofRepresentatives of the United States of America inCongress assembled (two-thirds of each Houseconcurring therein), That the following article isproposed as an amendment to the Constitution ofthe United States, which shall be valid to allintents and purposes as part of the Constitutionwhen ratified by the legislatures of three-fourthsof the several States within seven years after thedate of its submission for ratification:

Article—SECTION 1. If at any time 25 percent or more ofthe members of the House of Representativesare unable to carry out their duties because ofdeath or incapacity, each Governor of a Staterepresented by a member who has died or

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become incapacitated shall appoint an other-wise qualified individual to take the place of themember as soon as practicable (but in no eventlater than 7 days) after the member’s death orincapacity has been certified.

SECTION 2. An individual appointed to take theplace of a member of the House ofRepresentatives under section 1 shall serve untila member is elected to fill the vacancy resultingfrom the death or incapacity. A member shall beelected to fill the vacancy in a special election tobe held at any time during the 90-day periodwhich begins on the date the individual isappointed under section 1, in accordance withthe applicable laws regarding special electionsin the State involved, except that if a regularlyscheduled general election for the office will beheld during such period or 30 days thereafter, nospecial election shall be held and the memberelected in such regularly scheduled general elec-tion shall fill the vacancy upon election. An indi-vidual appointed under section 1 may be acandidate in such a special election or in such aregularly scheduled general election.

SECTION 3. During the period of an individ-ual’s appointment under section 1, the individ-ual shall be treated as a Member of the House ofRepresentatives for purposes of all laws, rules,and regulations.

SECTION 4. Congress shall have the power toenforce this article through appropriate legislation.

Proposal by: Representative LofgrenH.J. Res. 77 (2001)

Proposing an amendment to the Constitutionregarding the appointment of individuals toserve as Members of the House ofRepresentatives in the event that thirty percentor more of the Members are vacant because ofdeath or resignation. Congress is ultimatelyempowered to provide for temporary appoint-ments by law, rather than a provision in theConstitution, to fill vacant seats.

107TH CONGRESS — 1st SessionH. J. RES. 77

IN THE HOUSE OF REPRESENTATIVESDECEMBER 5, 2001

Ms. LOFGREN introduced the following jointresolution; which was referred to the Committeeon the Judiciary

JOINT RESOLUTIONProposing an amendment to the Constitution ofthe United States regarding the appointment ofindividuals to serve as Members of the House ofRepresentatives when, in a national emergency,a significant number of Members are unableto serve.

Resolved by the Senate and House ofRepresentatives of the United States of America inCongress assembled (two-thirds of each Houseconcurring therein), That the following article isproposed as an amendment to the Constitution ofthe United States, which shall be valid to allintents and purposes as part of the Constitution

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when ratified by the legislatures of three-fourthsof the several States within seven years after thedate of its submission for ratification:

Article—SECTION 1. Congress may by law provide forthe appointment of temporary members of theHouse of Representatives to serve during anyperiod in which 30 percent or more of the seatsof the House of Representatives are vacant dueto death or resignation.

SECTION 2. Any temporary member appointedpursuant to a law enacted to carry out this articleshall serve until a member is elected to fill thevacancy in accordance with the applicable lawsregarding special elections in the State involved.

Proposal by: Senator SpecterS.J. Res. 30 (2001)

Proposing an amendment to the Constitution ofthe United States regarding the appointment ofindividuals to serve as Members of the House ofRepresentatives in the event that half of theMembers are unable to serve at any timebecause of death or incapacity.

107th CONGRESS — 1st SessionS. J. RES. 30

IN THE SENATE OF THE UNITED STATESDECEMBER 20 (legislative day, DECEMBER 18), 2001

Mr. SPECTER introduced the following jointresolution; which was read twice and referred tothe Committee on the Judiciary

JOINT RESOLUTIONProposing an amendment to the Constitution ofthe United States regarding the appointment ofindividuals to serve as Members of the House ofRepresentatives in the event a significantnumber of Members are unable to serve at anytime because of death or incapacity.

Resolved by the Senate and House ofRepresentatives of the United States of America inCongress assembled (two-thirds of each Houseconcurring therein), That the following article isproposed as an amendment to the Constitution ofthe United States, which shall be valid to allintents and purposes as part of the Constitutionwhen ratified by the legislatures of three-fourthsof the several States within 7 years after the dateof its submission by the Congress:

Article—SECTION 1. If at any time 50 percent or moreof the Members of the House ofRepresentatives are unable to carry out theirduties because of death or incapacity, eachGovernor of a State represented by a Memberwho has died or become incapacitated shallappoint a qualified individual to take the placeof the Member as soon as practicable, but nolater than 7 days, after the Member’s death orincapacity has been certified.

An individual appointed to take the place of aMember of the House of Representatives underthis section shall be a member of the same polit-ical party as the Member of the House ofRepresentatives who is being replaced.

SECTION 2. An individual appointed to take theplace of a Member of the House of Representa-tives under section 1 shall serve until an indi-

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vidual is elected to fill the vacancy resultingfrom the former Member’s death or incapacity.

A Member shall be elected to fill the vacancy ina special election to be held at any time duringthe 90-day period which begins on the date theindividual is appointed under section 1, inaccordance with the applicable election laws ofthe State involved. However, if a regularly sched-uled general election for the office will be heldduring such 90-day period, or 30 days thereafter,no special election shall be held and the Memberelected in such regularly scheduled general elec-tion shall fill the vacancy upon election.

An individual appointed under section 1 may bea candidate in such a special election or in sucha regularly scheduled general election.

SECTION 3. During the period of an individ-ual’s appointment under section 1, the individ-ual shall have all the powers and duties of aMember of the House of Representatives.

SECTION 4. Congress shall have the power toenforce this article by appropriate legislation.

Proposal by: Norman J. OrnsteinResident Scholar, American EnterpriseInstitute

A constitutional amendment that grants gover-nors the power to make temporary appointmentsto fill vacant house seats when a majority of thenation’s governors determine that a majority ofthe state’s representatives or both Senators aredead or incapacitated. In the case of vacancies,Governors would make temporary appointmentsthat would last until a special election could be

held. In the case of incapacitated members,Governors would make interim appointmentswho would serve until the incapacitated memberrecovers. Governors shall select temporary andinterim members from a list of designated suc-cessors drawn up by each individual member.

JOINT RESOLUTIONResolved by the Senate and House ofRepresentatives of the United States of America inCongress assembled (two-thirds of each Houseconcurring therein), That the following article isproposed as an amendment to the Constitution ofthe United States, which shall be valid to allintents and purposes as part of the Constitutionwhen ratified by the legislatures of three-fourthsof the several States within seven years after thedate of its submission for ratification.

SECTION 1. In the event of an emergency, theexecutive authority of each state shall determinethe condition of its Representatives andSenators. If the offices of a majority of theRepresentatives apportioned to that state or ofboth of the Senators are vacant or occupied bymembers unable to discharge the powers andduties of their office, the executive authority ofthat state shall issue a proclamation to thateffect. The proclamation shall be sent to theSpeaker of the House, the president of theSenate and other officers that shall be specifiedby law. If within a [… ]-day period, executiveauthorities of the majority of states have issuedsuch a proclamation, an emergency appointmentauthority shall commence, whereby the execu-tive authority shall make temporary appoint-ments to fill vacancies in the House ofRepresentatives and make appointments ofacting members to discharge the function ofRepresentatives and Senators unable to perform

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their duties, while their disability persists. Theemergency appointment authority shall remainin effect until the end of the next session.

SECTION 2. In accordance with the emergencyappointment procedure in this article, eachmember of the House of Representatives andeach Senator shall designate in advance notfewer than 3 nor more than 7 emergency interimsuccessors to the member’s powers and duties.All designated interim successors shall meet thequalifications for the office so designated. Eachmember shall review and, as necessary,promptly revise the designations of emergencyinterim successors to insure that at all timesthere are at least 3 such qualified emergencyinterim successors. Members and Senators shallsubmit their lists of designated successors to theSpeaker of the House, the president of theSenate and the executive authority of their state.

SECTION 3. Upon commencement of the emer-gency authority provided for by this article, theExecutive Authority of each State shall appointTemporary Members to fill vacancies in theHouse of Representatives, selecting from the listof designated successors. For the period of theirappointment, Temporary Members shall bemembers of the House of Representatives for allpurposes under this Constitution, the laws madein pursuance thereof, and the rules of the Houseof Representatives. The appointment of a tempo-rary Member shall end upon the filling of thevacancy by election.

SECTION 4. In the case of a vacancy in theHouse of Representatives under this article, thewrit of election that shall issue under Article I ofthis Constitution shall provide for the filling of

the vacancy within [.........] days of its happen-ing, except that if a regularly scheduled electionfor the office will be held during such period or[........] days thereafter, no special election shallbe held and the member elected in such regu-larly scheduled general election shall fill thevacancy upon election.

SECTION 5. In the case of a Representative,who is unable to discharge his or her duties, theexecutive authority in each state shall, under theemergency authority of this article, appoint as anActing Member an individual, selecting from thelist of designated successors, to discharge thepowers and duties of a Representative who isunable to discharge those functions. Theappointment of an Acting Member shall endupon the transmission to the Speaker or otherOfficer designated by the House ofRepresentatives an affirmation in writing by themember that no inability exists. Upon the trans-mission of the affirmation the member shallresume all the powers and duties of the Office.

SECTION 6. In the case of a Senator, who isunable to discharge his or her duties, the execu-tive authority in each state shall, under theemergency authority of this article, appoint as anActing Senator an individual, selecting from thelist of designated successors, to discharge thepowers and duties of a Senator who is unable todischarge those functions. The appointment ofan Acting Senator shall end upon the transmis-sion to the president of the Senate or otherOfficer designated by the Senate an affirmationin writing by the Senator that no inability exists.Upon the transmission of the affirmation theSenator shall resume all the powers and dutiesof the Office.

Preserving Our Institutions50

Proposal by: Michael DavidsonFormer Senate Legal Counsel

An amendment changing the House vacancyprocedure to one very similar to the Senate’s;however, it limits the temporary appointments to60 days. The legislature of each state may allowthe executive to make the temporary appoint-ments if a vacancy does occur.

JOINT RESOLUTIONResolved by the Senate and House ofRepresentatives of the United States of America inCongress assembled (two-thirds of each Houseconcurring therein), That the following article isproposed as an amendment to the Constitution ofthe United States, which shall be valid to allintents and purposes as part of the Constitutionwhen ratified by the legislatures of three-fourthsof the several States within seven years after thedate of its submission for ratification.

SECTION 1. When vacancies in the House ofRepresentatives happen in the representationfrom any state, the executive authority thereofshall issue writs of election to fill such vacancies.

SECTION 2. The legislature of any state mayempower the executive thereof to make tempo-rary appointments of Members of the House ofRepresentatives until the people fill the vacan-

cies by election as the legislature may direct;Provided, That a temporary appointment shallnot last longer than ninety days or until an elec-tion to fill the vacancy, whichever is sooner.

Proposal by: Michael GlennonProfessor of International Law, TheFletcher School, Tufts University

A constitutional amendment that would allowCongress, by use of legislation, to regulate thefilling of vacancies in House of Representativeswhen a substantial number of members arekilled or incapacitated.

JOINT RESOLUTIONResolved by the Senate and House ofRepresentatives of the United States of America inCongress assembled (two-thirds of each Houseconcurring therein), That the following article isproposed as an amendment to the Constitution ofthe United States, which shall be valid to allintents and purposes as part of the Constitutionwhen ratified by the legislatures of three-fourthsof the several States within seven years after thedate of its submission for ratification.

Congress shall have power to regulate by law thefilling of vacancies that may occur in the Houseof Representatives in the event that a substantialnumber of members are killed or incapacitated.

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Delaware

Del. Const. art XVII, § 1 (2002) § 1. Continuity of state and local governmentaloperations in periods of emergency resultingfrom disasters caused by enemy attack

The General Assembly, in order to insure conti-nuity of State and local governmental operationsin periods of emergency resulting from disasterscaused by enemy attack, shall have the powerand the immediate duty (1) to provide for promptand temporary succession to the powers andduties of public offices whose succession is nototherwise provided for in this Constitution, ofwhatever nature and whether filled by election orappointment, the incumbents of which maybecome unavailable for carrying on the powers

and duties of such offices, and (2) to adopt suchother measures as may be necessary and properfor insuring the continuity of governmental oper-ations. In the exercise of the powers hereby con-ferred the General Assembly shall in all respectsconform to the requirements of this Constitutionexcept to the extent that in the judgment of theGeneral Assembly so to do would be impractica-ble or would admit of undue delay.

29 Del. C. § 7802 (2002) § 7802. Statement of policy

Because of the existing possibility of attackupon the United States of unprecedented sizeand destructiveness, and in order, in the eventof such an attack, to assure continuity of gov-ernment through legally constituted leader-

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Appendix VIIExamples of Emergency Vacancy Provisions as Legislated by States

Listed below are three different methods that states use to address vacancies in their legislatures. Both Delaware and California have procedures to deal with mass vacancies in emergency situations. Statelegislators in Delaware designate a list of successors in advance. In California, the remaining members of the legislature fill the vacancies. North Dakota’s normal methodfor filling vacancies would also operate in an emergency situation. In this case, local partycommittees are responsible for filling the vacancies.

ship, authority and responsibility in offices ofthe government of the State and its politicalsubdivisions; to provide for the effective oper-ation of governments during an emergency; andto facilitate the early resumption of functionstemporarily suspended, it is found anddeclared to be necessary to provide for emer-gency interim succession to governmentaloffices of this State and its political subdivi-sions in the event the incumbents thereof (andtheir deputies, assistants or other subordinateofficers authorized, pursuant to law, to exerciseall of the powers and discharge the duties ofsuch offices hereinafter referred to as deputies)are unavailable to perform the duties and func-tions of such offices.

29 Del. C. § 7803 (2002) § 7803. Definitions

Unless otherwise clearly required by the con-text, as used in this chapter:

(1) “Unavailable” means either that a vacancyin office exists and there is no deputy authorizedto exercise all of the powers and discharge theduties of the office, or that the lawful incumbentof the office (including any deputy exercisingthe powers and discharging the duties of anoffice because of a vacancy) and the lawfulincumbent’s duly authorized deputy are absentor unable to exercise the powers and dischargethe duties of the office.

(2) “Emergency interim successor” means aperson designated pursuant to this chapter,in the event the officer is unavailable, to exer-cise the powers and discharge the duties of anoffice until a successor is appointed or electedand qualified as may be provided by the

Constitution, statutes, charters and ordinancesor until the lawful incumbent is able to resumethe exercise of the powers and discharge theduties of the office.

(3) “Office” includes all state and local offices,the powers and duties of which are defined bythe Constitution, statutes, charters and ordi-nances, except the office of Governor and exceptthose in the General Assembly and the judiciary. (4) “Attack” means any attack or series ofattacks by an enemy of the United States caus-ing, or which may cause, substantial damage orinjury to civilian property or persons in theUnited States in any manner by sabotage or bythe use of bombs, missiles, shellfire or atomic,radiological, chemical, bacteriological or biolog-ical means or other weapons or processes.

(5) “Political subdivision” includes counties,cities, towns, districts, authorities and otherpublic corporations and entities whether organ-ized and existing under charter or general law.

29 Del. C. § 7804 (2002) § 7804. Emergency interim successors forstate officers

All state officers, subject to such regulations asthe Governor (or other official authorized underthe Constitution to exercise the powers and dis-charge the duties of the office of Governor) mayissue, shall, upon approval of this chapter, inaddition to any deputy authorized pursuant tolaw to exercise all of the powers and dischargethe duties of the office, designate by title emer-gency interim successors and specify their orderof succession. The officer shall review andrevise as necessary designations made pursuantto this chapter to insure their current status. The

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officer will designate a sufficient number of suchemergency interim successors so that there willbe not less than 3 nor more than 7 such deputiesor emergency interim successors or any combi-nation thereof, at any time. In the event that anystate officer is unavailable following an attack,and in the event the officer’s deputy, if any, isalso unavailable, the said powers of the officer’soffice shall be exercised and said duties of theofficer’s office shall be discharged by the offi-cer’s designated emergency interim successorsin the order specified. Such emergency interimsuccessors shall exercise said powers and dis-charge said duties only until such time as theGovernor under the Constitution or authorityother than this chapter (or other official author-ized under the Constitution to exercise thepowers and discharge the duties of the office ofGovernor) may, where a vacancy exists, appointa successor to fill the vacancy or until a succes-sor is otherwise appointed, or elected and qual-ified as provided by law, or an officer (or theofficer’s deputy or a preceding named emer-gency interim successor) becomes available toexercise or resume the exercise of the powersand discharge the duties of the office.

29 Del. C. § 7807 (2002) § 7807. Formalities of taking office

At the time of their designation, emergencyinterim successors shall take such oath as may berequired for them to exercise the powers and dis-charge the duties of the office to which they maysucceed. Notwithstanding any other law, noperson, as a prerequisite to the exercise of thepowers or discharge of the duties of an office towhich such person succeeds, shall be required tocomply with any other law relative to taking office.

29 Del. C. § 7808 (2002) § 7808. Period in which authority maybe exercised

Officials authorized to act as emergency interimsuccessors are empowered to exercise thepowers and discharge the duties of an office asherein authorized only after an attack upon theUnited States, as defined herein, has occurred.The General Assembly by concurrent resolution,may at any time terminate the authority of saidemergency interim successors to exercise thepowers and discharge the duties of office asherein provided.

29 Del. C. § 7809 (2002) § 7809. Removal of designees

Until such time as the persons designated asemergency interim successors are authorized toexercise the powers and discharge the duties ofan office in accordance with this chapter,including § 7808 of this title, said persons shallserve in their designated capacities at the pleas-ure of the designating authority and may beremoved or replaced by said designating author-ity at any time, with or without cause.

29 Del. C. § 7810 (2002) § 7810. Disputes

Any dispute concerning a question of fact arisingunder this chapter with respect to an office in theexecutive branch of the state government shall beadjudicated by the Governor (or other officialauthorized under the Constitution to exercise thepowers and discharge the duties of the office ofGovernor) and the decision shall be final.

Preserving Our Institutions54

California Cal Const, Art IV § 21 (2003) § 21. Preservation of governmentduring emergency

To meet the needs resulting from war-caused orenemy-caused disaster in California, theLegislature may provide for:

(a) Filling the offices of members of theLegislature should at least one fifth of the mem-bership of either house be killed, missing, ordisabled, until they are able to perform theirduties or successors are elected.

(b) Filling the office of Governor should theGovernor be killed, missing, or disabled, untilthe Governor or the successor designated in thisConstitution is able to perform the duties of theoffice of Governor or a successor is elected.

(c) Convening the Legislature.

(d) Holding elections to fill offices that areelective under this Constitution and thatare either vacant or occupied by persons notelected thereto.

(e) Selecting a temporary seat of state or countygovernment.

Cal Gov Code § 9004§ 9004. Filling vacancies caused by war orenemy-caused disaster; Procedure

When the Legislature convenes or is convenedin regular or extraordinary session during or fol-

lowing a war or enemy-caused disaster andvacancies exist to the extent of one-fifth or moreof the membership of either house caused bysuch disaster, either by death, disability orinability to serve, the vacancies shall be tem-porarily filled as provided in this section. Theremaining members of the house in which thevacancies exist, regardless of whether they con-stitute a quorum of the entire membershipthereof, shall by a majority vote of such mem-bers appoint a qualified person as a pro temporemember to fill each such vacancy. The ChiefClerk of the Assembly and the Secretary of theSenate or the persons designated to performtheir duties, as the case may be, shall certify astatement of each such appointment to theSecretary of State, who shall thereupon issuecommissions to such appointees designatingthem as pro tempore members of the house bywhich they were appointed.

The appointments shall be so made that eachassembly or senatorial district in which avacancy exists shall be represented, if possible,by a pro tempore member who is a resident ofthat district and a registered elector of the samepolitical party as of the date of the disaster asthe last duly elected member from such district.

Where an elected member is temporarily dis-abled or unable to serve, such elected membershall resume his office when able, and the protempore member appointed in his place underthis section shall cease to serve. In other cases,each pro tempore member appointed under thissection shall serve until the next election of amember to such office as provided by law.

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North DakotaN.D. Const. Art. 4, § 11§ 11. The legislative assembly may provide bylaw a procedure to fill vacancies occurring ineither house of the legislative assembly.

N.D. Cent. Code, § 16.1-13-10(2002) § 16.1-13-10. Vacancy existing in office ofmember of legislative assembly

If a vacancy in the office of a member of the leg-islative assembly occurs, the county auditor ofthe county in which the former member residesor resided shall notify the chairman of the leg-islative council of the vacancy. The county audi-tor need not notify the chairman of thelegislative council of the resignation of amember of the legislative assembly when theresignation was made under section 44-02-02.

Upon receiving notification of a vacancy, thechairman of the legislative council shall notifythe district committee of the political party thatthe former member represented in the district inwhich the vacancy exists. The district committeeshall hold a meeting within twenty-one daysafter receiving the notification and select anindividual to fill the vacancy. If the formermember was elected as an independent candi-date or if the district committee does not makean appointment within twenty-one days afterreceiving the notice from the chairman of thelegislative council, the chairman of the legisla-tive council shall appoint a resident of the dis-trict to fill the vacancy. If eight hundredtwenty-eight days or more remain until the expi-ration of the term of office for that office, theindividual appointed to fill the vacancy shallserve until a successor is elected at the nextgeneral election to serve for the remainder of theterm of office for that office.

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Number of Appointed Year Senators Seeking Election Total Elected Percent Elected

1986 1 0 0.0

1988 1 0 0.0

1990 1 1 100.0

1992 2 1 50.0

1994 1 0 0.0

2000 2 2 100.0

totals 8 4 50.0

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Appendix VIIIInitial Election Rates for Senators Followinga Gubernatorial Appointment

From 1986 through 2000, 8 senators who were appointed to fill vacancies in the Senate ran in the next election. Fifty percent of them won.

PROBLEM: If there were mass vacancies inthe House of Representatives or large numbersof incapacitated members of the House orSenate, Congress would be unable to functionfor many months, leaving a vacuum in constitu-tional legislative authority. The Constitutionprovides only one method, a special election, forfilling House vacancies. These elections takemany months to hold while the seat remainsvacant. If there were hundreds of House vacan-cies, the House might be unable to meet its con-stitutional quorum requirement of one-half themembership and would be unable to transactbusiness. An alternative scenario, under alenient quorum interpretation, would be theHouse continuing to operate with a smallnumber of representatives—leaving most of thecountry unrepresented. The Constitution alsodoes not provide an effective way for filling tem-porary vacancies that occur when members areincapacitated. With the real dangers of biologi-cal weapons, both the Senate and the Housecould be crippled if a large number of memberswere very sick and unable to perform theirduties. The continuity of Congress also affectsthe presidency, as leaders of Congress are in theline of presidential succession. If the House of

Representatives, decimated after an attack,elected a new Speaker, that Speaker couldbecome president for the remainder of the term.

RECOMMENDATION: A constitutionalamendment to give Congress the power to pro-vide by legislation for the appointment of tem-porary replacements to fill vacant seats in theHouse of Representatives after a catastrophicattack and to temporarily fill seats in the Houseof Representatives and Senate that are held byincapacitated members. The commission rec-ommends an amendment of a general nature thatallows Congress to address the details throughimplementing legislation. It believes it is essen-tial for such a procedure to operate under emer-gency circumstances if many members ofCongress were dead or incapacitated, but thecommission leaves Congress to decide the exactcircumstances under which the procedure willtake effect. It recommends that temporary rep-resentatives be appointed by governors or from alist of successors drawn up in advance by eachrepresentative or senator. Given the severe con-sequences of an attack on Congress, the com-mission believes that the amendment should beadopted within a two-year period.

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Summary of Central Recommendation

The Continuity of Government Commission is an American Enterprise Institute and Brookings Institution project.

The Commission is funded by:

The Carnegie Corporation of New York

The William and Flora Hewlett Foundation

The David and Lucille Packard Foundation

The John D. and Catherine T. MacArthur Foundation

Continuity ofGovernment

Commission

Continuity of Government Commission

American Enterprise Institute

1150 Seventeenth Street, NW

Washington, DC 20036

continuity@aei.org

www.continuityofgovernment.org