12 September 2003

Ensuring the Continuity of Congress in a Time of Emergency

Senator John Cornyn evaluates alternative proposals

(This column by Senator John Cornyn, Texas Republican, who is chairman of the Senate subcommittee on the Constitution, Civil Rights and Property Rights, was published in the Washington Times September 12 and is in the public domain. No republication restrictions.)

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Continuity of Congress
By John Cornyn

Two days after September 11, Congress approved legislation expediting benefits for public safety officers killed or injured in the line of duty that day. Three days after September 11, Congress appropriated $40 billion in emergency funds for recovery from and response to the attacks, as well as legislation authorizing the use of military force. A week later, Congress approved additional legislation to stabilize and secure our economy and our airports, and to provide compensation for the victims of the September 11 attacks. And in subsequent weeks, Congress enacted several other bills and appropriations measures to bolster national security and upgrade our capabilities to combat terrorism.

Yet two years later, Congress has failed to establish one vital protection: Ensuring that the important institutions of our government will continue to operate on behalf of the American people should another attack occur.

In order to address this gap in our national security, I chaired the first in a series of congressional hearings Tuesday. The overwhelming conclusion of this first hearing was that our current laws are woefully inadequate, because they fail to guarantee continuity of Congress.

Under our Constitution, Congress cannot act without a majority of its members present. There is good reason for such a provision, as one Constitutional Convention delegate urged, in this extended country, embracing so great a diversity of interests, it would be dangerous to the distant parts to allow a small number of members of the two houses to make laws.

This commitment to federalism and national representation has a cost, however: The same requirement also empowers terrorists to shut down the Congress by killing or incapacitating a sufficient number of representatives or senators.

The problem is that states may empower their governors to appoint senators in cases of vacancies, and 48 states have done so, but the Constitution provides no immediate mechanism for filling vacancies in the House, nor for redressing incapacitated members in either the House or the Senate.

For example, if 50 senators were in the hospital and unable either to perform their duties or resign, they could not be replaced. The Senate could be unable to operate for up to four years.

The Continuity of Government Commission, a bipartisan panel of former congressional leaders and government officials across the political spectrum, has unanimously endorsed a constitutional amendment to provide for emergency interim appointments, in cases of catastrophic attack, until special elections can be held. Just as the 25th Amendment ensures continuity of the presidency, the proposed amendment would ensure continued congressional operations. Indeed, some members of Congress have already introduced their own constitutional amendment proposals, joined by a bipartisan coalition of more than 80 co-sponsors.

Alternatively, a group of U.S. representatives, including some prominent Republican House members, have introduced a statutory proposal to require expedited special elections in cases of emergency. Parties would have two weeks to nominate candidates, and the election would occur seven days later.

I'm open to any proposal that gets the job done, and I respect the sincere desires of many House members to preserve, to the maximum extent possible, the tradition that every member of the House is elected.

I am concerned, however, that expedited special elections either take too long to conduct to ensure adequate continuity, or will sacrifice too many other important principles, such as meaningful elections and voting rights in the process. It is one thing to plan for an election that has been scheduled months or even years in advance. It is quite another to conduct an election from a standing start.

At the hearing, we heard expert testimony that special elections take months to conduct. It takes time to qualify the candidates, hire poll workers, prepare voter rolls and voting machines, and reserve polling locations. Then there's election results verification and qualification of winners.

I am also deeply concerned with testimony that such expedited elections would effectively disenfranchise military and other absentee voters. Americans who put their lives at stake to protect democracy against threats abroad have every right to participate in democracy at home. It would be impossible to send and receive absentee ballots to our troops overseas under such limited time constraints. Also, giving voters and candidates just seven days to debate issues and examine qualifications also presents serious concerns of democratic integrity.

Notably, state and local election officials who have explained their views to us unanimously expressed concerns with conducting elections in such a dramatically shortened timeframe.

This week's hearing was, I hope, just the first step in a longer process of ensuring that our more than 200-year experiment in self-government will never perish from this earth. We must begin the process of sending the message to terrorists that there is nothing they can do to stop the American government from securing freedom here and around the globe. Nobody likes planning for their own demise, but two years is too long to wait. The time to plan for the unthinkable is now.

(Sen. Cornyn will co-chair a hearing on Tuesday with Sen. Trent Lott to review the presidential succession statute.)

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