ok this hearing of the subcommittee on the constitution civil rights and civil liberties come to order the first order of business to recognize themselves for five minutes but opening statement today's hearing deals with a very important finished in fact i would say it's clear that our work is not and i hope to hear from today's witnesses about some of these important issues most importantly we need to know whether our current system is sufficient to ensure the necessary government functions continue in a manner that is both is important and exclusive functions under the constitution and we must guarantee that those functions remain vital in a national emergency one might even say especially in a national emergency i'm especially concerned that the house of representatives well short of the majority of its four hundred thirty president exercising unchecked power in the absence of a functioning congress the nation runs a risk in national crisis of those proportions of turning to a dictatorship if the person who controls the most divisions gets to run the show and the attack will have been successful in a way that we cannot accept similarly it is not clear how we can deal with the problem of determining when members are incapacitated who should make that decision how to respond and how and when to determine that the incapacity is over is not entirely clear the current house rules which i authored with the help of a ranking member conyers and ranking member of the house armed services committee will preserve the people's constitutional right to direct elected representation by requiring the expedited special election of new members in only policy by which the house can have an immediate sympathy with the people of the house uniquely among all the branches and bodies of the entire federal government is rooted in the principle of direct elections and that principle must be preserved of all constitutional amendments the house has ever held hearings that proposal was the most overwhelmingly approved constitutional amendment in the history of congress a proposed constitutional amendment even more on a bipartisan proposal to amend the constitution to provide more democracy not less by requiring that senators always cap proposal of course was spurred by the corruption surrounding the appointment of pr as head of a union sponsored organization opening the house of representatives to the same corrupt dealings through an appointment process is exactly the wrong way to go finally let me quote another former senator now vice president joe biden a few years ago he was asked by george stephanopoulos of a b c whether he thought it was a good idea for candidates to sign a pledge to establish specific rules to ensure that congress could reconstitute itself through a nonelected members and mediately after an attack to that senator biden stated and i quote i think that is the worst in the world be right with that in mind i look forward to hearing from today's witnesses i thank you gentlemen and i'm glad we have on the record the statement from the chairman the vice president is right on something  third district of washington since one nine hundred ninety eight is a licensed clinical psychologist who is practice in washington state and oregon is also taught at the university level as a former chairman of the department psychology at the lutheran university election congress and bad work in the state veteran's administration psychiatric hospitals community mental health clinics substance abuse program institutions for juvenile offenders and head injury rehabilitation programs he currently serves in the house transportation infrastructure committee o and then read when the five minutes are up some very strong men the ranking member friends and distinguished colleagues i want to thank you for holding this hearing on what i consider to be one of the most important matters that may come before congress during our careers and perhaps during our lifetimes i'm referring to the need to ensure that the congress itself will continue in a constitutionally valid matter if a terrorist attack pandemic disease natural disaster or other catastrophic event results in the death or before the matter has been discussed before but we still lack a solution that is either constitutionally valid or functional in practice that facts suggest a failure to up hold our sacred oath of office i will make four points today first there is no doubt that we face a real possibility of terrorist attacks disease or natural catastrophe second we have no constitutionally valid mechanism for dealing with such events third of an attack or disaster  occurs it will create a constitutional crisis and confusion in precisely the worst possible moment and fourth responsible constitutionally valid and practical options have been proposed and it is time for congress to act on them post september eleventh the first point would seem to be obvious yet many appear to deny or minimize it there are worse ideas mr ranking member to reap temporary placement of that is no congress at all that is a much worse idea to those who still do not recognize a threat let me quote from the report of the commission on the prevention of weapons of mass destruction senator bob graham and jim talent that report begins in quote unless the world community acts decisively and with great urgency it is more likely than not that a weapon of mass destruction will be used in a terrorist attack somewhere in the world by the end of twenty thirteen if we're sworn to uphold the constitution we should not leave such gaps as exists today in two thousand and five as was mentioned a provision was attached to an appropriations bill following a hearing by the way at which i was not allowed to testify on the nature of my own bill and that was passed by the house but it creates a procedure in which the house rules set a provisional form and catastrophic circumstances allowing the house operate under a provisional quorum first of all let's talk about special elections we have actually done some work on this to our knowledge those who passed that well have not but we looked into it and asked how many states actually have conducted elections in the requisite time period in fact only one has of the prior twenty one special election since that bill passed the average in fact has been not forty days but one hundred seventeen days most recent elections were in response to known vacancies not crisis events and they took respectively one hundred forty days in the case of hilda lee's ninety one days in the case of rahm emanuel etc some could argue that we will move faster after a disaster i find that a remarkable assertion but we actually have evidence the primary election in louisiana was scheduled for one hundred fifty days after the president declared disaster it did not actually occur until two hundred thirty nine days after the disaster election so much for the idea  disaster speeds things up and makes people do things more quickly states responded we find very few states that have enacted any laws suggesting they could in fact conduct elections in the requisite time period i also believe that we'll he from mr forty a that the constitution of the temporary quorum is blatantly unconstitutional and at best a fig leaf to try to fill in the gap it's impossible to imagine that the framers of the constitution wanted a congress comprised the one or two members and a quorum consisting of half of that for the purpose of declaring war instituting a draft appropriating money and impeaching a president and possibly electing the president in the form of the speaker of the house i cannot imagine they were serious about that what happens if we don't act what happens is a constitutional crisis and uncertainty or a rump government either an executive branch declaring martial law or a few members saying we are the congress and we can do all the aforementioned things that is not the condition we offered an alternative approach the key point for us is this the status quo is untenable it is dangerous for a constitutional democratic republic solutions have been offered they ought to be implemented one of the aforementioned or something better perhaps before not after now there are critics of this some wish to believe that we won't ever get killed you know i said goodbye to my kids one day before i went to iraq and one of my little boys is four said daddy how i know how do i know you're not going to get died while you're over there and i said to him son don't worry dad he's not going to die i lied to him i am going to die so were all of you so all of the question is how and when but i did take the assurance that if something did happen to me my son would be cared for we have that same responsibility and we cannot lie anymore neither can we put forward resolutions that are unconstitutional or based on wishful thinking and neither can we not act so mr chairman thank you for holding this important hearing i appreciate it and i appreciate my appreciate this opportunity to testify providing for the continuity of congress has been a special cause for my colleague mr baird and i have shared that with him just as we shared the experience together on the steps of the capitol on september eleventh two thousand and one it was clear on that day when we stood in the team to the mayhem that had gone down in new york and and tack on the pentagon it was clear that  status quo does not work house joint resolution fifty two and fifty three respectively my own address is the continuity of congress in case of a manmade or a natural catastrophe however we both co sponsored proposals in the belief that either of these proposals are better than the current status quo in which we are totally vulnerable immediately after an attack and that has not providing that each person who is elected to the house of representatives or the elected in combination with an alternate this provision is of course modeled on how we currently elect the president and the real challenge we are vulnerable this country as we all know terrorists are also vulnerable to accidents let's correct the situation and make sure that we can always have  proposal will go a long way to making this country less vulnerable right now thank you very much thank you very much it's customary in this committee that we don't ask questions of a member of colleagues someone known for his honor and integrity certainly that would be something that judgment would be something i'm sure my constituents would take him into consideration because if i would pick somebody who is  job of a i think the job of an alternate congressman would be the most important job of all and that is and what's happening here is our government this is the house of people this is a house of our cannot serve as another another correct and why do you think that's a good idea i think it's a good idea because we don't need to have such a concentration of forty and potential different direction and it be this if we have a vote today and most of us are on the house floor and most of us are killed or state of the union where vast numbers are killed under the current situation you would have a huge question mark who is going to f that you will have no representation most people in the united states of america will have no representation at all in the house of representatives and it's important to suggest that those who are who are hard over and say validly on one hand nobody's ever served who wasn't elected that somehow that is more important than having some representation i just differ with that i would at least like to have somebody chosen by the person who i've elected from my district from my state at least on  the constitution giving a voice if we're going to start a draft have a war appropriate funding be present i want a voice there now the question for me is if i mean you would assume that the that the person who is elected to congress would select for such an alternate someone of the same political views philosophy etc i say and that's exactly the point other proposals one of the problems with the senate system is that you have you have partisanship mr sensenbren alluded to that you have people trying to say well that's which part of those key parties etc you should have that we would most likely to select statesmen and stateswomen to fill our shoes i could name somebody of my right now don bach or former representative well respected in this institution would do an admirable job perhaps better than i would do if i perish that here's the point with the proposal i've put forward or mr rohrabacher within forty eight hours maybe twenty four hours of the worst decapitate was started singing god bless america and everybody turned around and started coming back and you know it was that unity that we demonstrated all of us together that day that important i think helped bring america together so i think it's very fitting today that we're taking care of business with the friendship that we started there on nine eleven all of us need to think about the potential of something horrible like that happening and come up and i would ask the witnesses take their places in the interest of time i will introduce the second panel of witnesses while they are taking this john for i hope i'm pronouncing that right r peterson as an analyst in american national government in the congressional research service specialization include continuity of government in emergency preparedness and congressional administrative operations in three and they have decades as a special in american national government with rational research service of the library of congress member the c r s nine hundred seventy one the both managerial and research positions during his career his principal areas of research responsibility included the presidential office and powers executive branch organizational management executive congressional relations congressional oversight in various aspects of government information policy and practice currently in private practice he's preparing a book a national emergency entirety i would ask each of you to summarize your testimony five minutes or less of you stay within that time there's a timing light to your table when one minute remains the light will switch from green to yellow and then red when the five minutes are up will the question is will be recognized in the order of seniority on the committee alternating from majority to minority i will reserve the right t can use you michael thank you chairman adler ranking member sensurround are members of the subcommittee for holding this hearing on a very important topic all of you know that it is almost eight years since nine eleven and many of us have been working on these and we've held many hearings in this committee and around the hill and out side of congress and i think we actually have a common understanding of what the problems are but we do have some differences as to what the solutions are or whether what congress has done in the meantime has really been adequate the goal really is to have a legitimate functioning congress quickly after a catastrophic attack that's important because the real important decisions are made in the two to three months after  after attack after nine eleven after what might be follow us in the future if we don't have a congress at all or if we have a congress that is made up of a very small unrepresentative part of of the house of representatives or in the senate  we don't serve the american people well we potentially defer too much to the executive we may be deferring to an executive who is not the original president who is a secondary figure told by the line of succession into into office so the important goal is to have a  legitimate as full as possible function in congress as quickly as possible for those decisions that will be made after an attack the problems to get to that are really are that the house has trouble filling vacancies quickly  it has special elections not appointments the senate's most states have given their their governors the power to make appointments the senate could probably be in place quickly after an attack that most of its members were killed or not not in and then we also have a problem with the capacity in both the house and the senate where conceivably a large number of members killed or incapacitated could persist for for many months or even years where there was no way to potentially replace those members and commission was to have a form of temporary appointments to fill vacancies in the house and to have some temporary appointments available to fill in for members who are incapacitated in extreme circumstances again we are we take no issue with the current  situation in the house and the senate i think would agree with the ranking member sensenbrenner that the house should be the people's house that in normal circumstances a vacancy for a time is not going to affect the functioning of the house but in a case of large numbers of members of congress members of the house especially killed or incapacitated the representative character of the house is hurt and potentially the actual functioning of the house and that would shift dramatically the balance of power between the branches so what has been done one we've we've passed some legislation to speed up special elections and catastrophic situations and to we've changed the rules or codified some new rules on the on the quorum i don't think either of these are adequate one the speeding up the special elections as representative baird referred to is is likely not workable forty nine day limit some states do have in their laws the provision to have quick alexion but most election officials will tell you that is very difficult to do that you would have to skip primaries that you have to change the laws now in advance of an attack in most states have not taken that up and i think it's very unlikely that the states would meet that deadline and even if they did that still quite a long time for many members of congress to be missing for congress missing two thirds or three quarters of its members during the most important decisions that have to be made i have in my testimony more on the quorum but  situations that would lower the quorum i don't believe that was consistent with the framers original intent to have a body that was widely representative of people not a group of people claiming to represent others and administrative coordinated efforts between the branches and a number of other programs and i'm going to focus on continuity of congressional representation which filling in large numbers of vacancies in the house and addressing the extent to which further consideration of these issues might be necessary and whether developing additional plans for continuity of representation would better prepare congress to withstand general interruptions thank you again for inviting me to testify and i'll be happy to a dress any questions you might have thank you very much  my statement because emergency conditions occurring in the early months of eight hundred sixty one when congress was not in session and the newly elected president chose to address the crisis at hand unilaterally taking actions of necessity which he trusted to reconvene congress ratified where you know you needed legislative ratification of those actions but he was not willing to convene a new congress immediately to obtain the necessary approval instead the thirty seventh congress did not convene for one hundred twenty two days or about seventeen weeks the time frame is important in view of the schedules that in the representation act of two thousand and five which basically calls for the holding of a special election within body nine days following an announcement by the speaker that because of extraordinary circumstances and representation from states have exceeded one hundred and congressional hearings a few years ago some question that a national standard of forty five to fifty days was sufficient for the holding of massive elections after a national catastrophe longer periods of time from election administration perspective it was suggested would yield a better opportunity to include more of the electorate such as americans armed forces personnel travelers and older people and better ensure the integrity of the electoral occurrence of special elections what is the expectation in the case of lincoln an eight hundred sixty one it was a fire readily his emergency actions which in his words and i quote whether strictly legal or not were ventured upon under what appeared to be a popular and a public necessity quote among these were increases in the armed forces constitutional responsibility clearly vested in congress in the aftermath of the terrorist attacks of september eleventh two thousand and one president bush was driver's actions with persons who commit threaten to commit or support terrorism well congress may wish to explore the possibilities of an acting additional standby statutory authority to be activated by president presidential national emergency declarations relative to enjoying the continuity of the federal government including congress it should also be remembered that congress of that same national emergencies act may by joint resolution rescind a presidential emergency proclamation or authorit so activated which certainly is a reason for ensuring the operational capability of congress in the aft aftermath of a catastrophic attack by ratifying extraordinary emerging emergency actions of the president provide a needed resources for responding to an emergency and oversight of the response of the executive branch to act these two are reasons congress will be an active and continuous participant in the federal government's operations mr chairman thank you again for your invitation to appear here today before the subcommittee i welcome the questions of members thank you very much and i first recognize myself for five minutes for questioning   be able to act under current law with only three members present of the others are dead if not what's the distinction and do we have to address this problem was to do that well i think your question points majority or a larger number a smaller number and the reason they came to a majority which was a reasonably high number was that they didn't want a small number of people especially on the question is a majority of total seats a majority of members living well th framers believed that it was a majority of the total seats they didn't want the representatives from virginia and maryland to show up in the rest of the country in our current civil war is unconstitutional i think the interpretation of the  the civil war has been a fact that people who propose that during the civil war were leery of this and said look the states in the south of we don't want to run that they've really left and yet they haven't elected anyone we have to do something but they recognize that it was somewhat somewhat difficult and the later precedents really were about an individual vote we have a member two missing from the from the from the bodies so we'll say that the quorum is a couple less so i think the principle that you should have a majority of the country think about are the reason number of seats represents the country you have two hundred eighteen seats in the house of representatives would be a majority of people in the country represented i mean as with different question we have a tension obviously between of squaring that to be and i don't think either of these kind of proposals here do that way of squaring that to be to mandate special elections within a reasonable period of time but to provide left by the congress and but only to function until you could arrange that special action that that was a recommendation of our commission and we are flexible as to what sort of appointment that is but we believe in having the special elections we believe in getting people back democratically elected but we think that the period of time of we think several months critical time every district should be represented in there should be a temporary person a body else wanna come into the question or comment in this way i'm not an attorney but i would like to offer this perspective historically people have expected elected representation in the house it changed with the senate but i think that too is popular election direct election of senators was a reflection of that mood about the house and whatever we can do relative to preserving the house after an attack or a catastrophe that rests on the electoral base i think is extremely commendable and it's important not only for operational person purposes but i think it's important for but you would agree or disagree that pending as swift as swift as you can manage it you should have some somebody feeling i think that i think the exploring of something where we see a longer circumstance of members not being available that this alternative of the temporary appointed process should be that theoretically i suppose that's true congressman baird proposed that the congressman should give to the should give a list of alternates and rank order  insulting a state senator by not putting him on the list etc that list should be made should become public only the event of a catastrophe could you comment on that question to i personally i find the idea of an alternate i would i would find that somewhat confusing i think it would be confusing to the electorate it's such a rash radically new approach i'm not saying it doesn't have merit i'm simply what have i think it would have our hard time selling that to the american people able to vote once they think they've done a good job whether they win or lose and they don't want to play around with the idea of an alternate who is this other person etc designating people the second proposal i'm not so certain about that it has it has merit to how wide it's a sudden name kind of thing is a title kind of thing we name somebody personally or by title or no no you would name three people you'd given to give those three to the rank towards the clerk of the house and very and one that would be announced probably very into it wouldn't i understand it under question which i'm still not terribly excited about that idea why that whether or not i'm clear about the idea of whether it should be public or not and very much being public i don't get it should be public i don't think we want to do things of that nature in secret to have more of a conversation in the implementing legislation a potential issue with the alternate i understand in addition to the rank ordering there is a mandate stepping aside for a little while and they take a vote and that's what happens immediately he comes back and asserts that he's ready to take office and just take another vote that suggests that maybe present i'll just address your question directly i don't think there should be such a system because our recommendations really are about the emergency situation we respect your view that and the view of the founders that the house should be the people's house and the senate has moved to become a more democratic body it should be filled in normal constitutional ways but what we worry about is the extraordinary circumstance where we fear there will be no house or no senate and that that period of time two or three months which is the most important time for congress to be around after an attack we should have a full congress and i say that it's not only that it would be small or possibly undemocratic to have a small congress but if you look very different i think we all think of twenty members or thirty members as being sort of a mini version of today's congress could have a very different majority it could be only representing one state or one part of the country only man or only women it could be a very very different place and wouldn't look like the congress that was on the merits of any proposal that congress considers what i can say related to the issue of individual capacity incapacity one member at a time the practice has long been addressed by on a scale how do we know that has occurred that there is an attack if there's a bombing whatever it may be that may be how do we account for missing members or members that we don't know what condition the and or in other words there are a number of members that are in a medical condition that does not allow them to participate that may be more the situation of what you're thinking about rather than the case by case kind of thing that's happened in the past there i don't have an answer to that but perhaps there should be a greater awareness in that of that possibility on the part of state election and i'm sitting here thinking that we were counted that governors and others responsible for the electoral process sometimes have been slow because they haven't they haven't seen the urgency of the situation maybe we need to go back to some type of cold war education once again to make those officials more aware of their responsibilities in this type of mass attack and the need to determine perhaps of medical assistance and others  incapacitation whether it be from a physical injury or some other type of injury it seems like it's another step out beyond what was immediately under discussion here today but nonetheless a very important point the time of the gentleman is expired the gentleman from california mr chairman mr baird and i have been focused on these issues for a long time we have a division of attention he is focused on congressional continuity focused on presidential continuity and i'm going to use my five minutes mostly to focus on what i know about and plea that we also have a hearing on presidential continuity before i do i do want  respond a bit to mr sensenbrenner nine eleven occurred because we as americans were too damn arrogant to realize we were vulnerable and too comfortable to think the  unthinkable or to think about anything that made us uncomfortable yes indeed in alexandria they had elections perhaps within sixty days that wasn't a country that had suffered twenty thirty forty million casualties in a nuclear attack that was just a sunny day in virginia and so we better start thinking about how our country is going to persevere after millions of casualties and not assume that every day is going to be a sunny day in virginia as to presidential succession to wipe out congress you'd have to kill hundreds of people and you no doubt be killing hundreds of thousands as part of that process or tens of thousands to incapacitate the executive branch which is a time of crisis might even be more important than our own you'd only need one or two bullets the other thing to point out about presidential succession is that it is tirel creature of statute and so as a practical matter we decide to actually do something we could actually get something done there are a number of problems with the current presidential succession process the first is the most dangerous is what i call bumping that is to say you could swear in a president pro tem of the senate and the next day a house of representatives alexa new speaker you now have a country that has suffered a major catastrophe and has two presidents perhaps with very different ideas as to how to respond imagine yourself as a general in the army trying to decide which commander in chief to follow now we put our souls in iraq and afghanistan to defend us but we're unwilling to face uncomfortable truths from the safety of this capital to defend our ability to persevere if we just had two or three incredible self inflicted vulnerability but we could have to press all of those in succession of the to the presidency live here in washington d c we could easily designate some people who don't we've been too lazy to do so it is uncomfortable to think of the uncomfortable so we choose not to we've got time to rename post offices we don't have time to figure out who doesn't live in washington d c to the presidency of a presidential candidate a week before the election it is not automatic that a vote for that presidential candidate is a vote for that for the vice presidential candidate on the ticket it is by no means clear that the electoral college would vote for that person  so you could invalidate the legitimacy of the united states and its presidency with one bullet at the right time what happens about assassinations or deaths that occur between the election and the when the electoral college meets when the electoral college meets until the inauguration the president and then when you've inaugurated a president you have a president a vice president but you may not have a secretary you may not have any cabinet members who have been confirmed so who is third in line who is in line to the what any invitation to assess we could have replaced george w bush with nancy pelosi do you know how many democrats just in my district were praying every day that that would somehow happen thank god they're all believe in gun control and would do anything violent in addition keep in mind that just a few years before nine eleven str thurmond was third in line to the presidency now someone else has got in trouble by arguing whether strom thurmond should become president in one nine hundred forty eight i most senior senator elected as president pro tem we have a circumstance where in time of emergency we could have two presidents which is almost as bad as having the arguably commend mr baird for his tireless work on this effort and i would hope that we would not put the niceties of walking on the floor of the house no appointed person ever sat on this chair that that kind of thinking is a luxury in terms of will there be a legitimate government of a country that may have lost tens of millions of people in a nuclear attack subcommittee on nonproliferation don't think it couldn't happen the idea that there would be some meeting of the house of a few dozen people none of them from my state and that the entire country would say yes that's our representative body we're going to be asking the people united states of emergency to follow their government to make norma's personal sacrifice better tell them what the institutions are  those institutions better make sense we shouldn't ask people to die in afghanistan to safeguard our institutions if we're not willing to do the work necessary to do that thank you gentlemen gentleman from member the state laws would be there i suppose in a crisis we would always worry would would people act differently but you know that that problem is there in the current situation if you have a very small number of members acting under this forum roll twenty of them what's to say that they won't want to keep power in a way and not let the newly elected special representative come in as well so i i see the problem but i'm not sure it's particular to this this solution either the others