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99–622 2005

MARKUP OF CONTINUITY 

OF GOVERNMENT LEGISLATION 

BUSINESS MEETING 

BEFORE THE

COMMITTEE ON HOUSE 

ADMINISTRATION 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED NINTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, FEBRUARY 17, 2005 

Printed for the use of the Committee on House Administration 

( 

(II) 

COMMITTEE ON HOUSE ADMINISTRATION 

BOB NEY, Ohio, Chairman 

VERNON J. EHLERS, Michigan 

JOHN L. MICA, Florida 

JOHN T. DOOLITTLE, California 

THOMAS M. REYNOLDS, New York 

CANDICE S. MILLER, Michigan 

JUANITA MILLENDER-MCDONALD, 

California 

Ranking Minority Member 

TOM BRADY, Pennsylvania 

ZOE LOFGREN, California 

PROFESSIONAL STAFF

PAUL VINOVICH, Staff Director 

GEORGE SHEVLIN, Minority Staff Director 

(1) 

MARKUP OF CONTINUITY OF GOVERNMENT 

LEGISLATION 

THURSDAY, FEBRUARY 17, 2005 

HOUSE OF REPRESENTATIVES, COMMITTEE ON HOUSE ADMINISTRATION, Washington, DC. 

The committee met, pursuant to call, at 2:05 p.m., in Room 1310, 

Longworth House Office Building, Hon. Robert W. Ney [chairman 

of the committee] presiding. 

Present: Representatives Ney, Ehlers, Doolittle, Reynolds, Miller 

of Michigan, and Millender-McDonald. 

Staff present: Paul Vinovich, Staff Director; Fred Hay, Counsel; 

Matt Petersen, Counsel; Jeff Janas, Professional Staff Member; 

George Shevlin, Minority Staff Director; Charles Howell, Minority 

Chief Counsel; Matt Pinkus, Minority Professional Staff; and Tom 

Hicks, Minority Professional Staff. 

The CHAIRMAN. Committee is now in order for the purpose of 

consideration of H.R. 841, the Continuity and Representation Act 

of 2005. Last year, the full House of Representatives passed important legislation that would ensure that a functioning House would 

be in place with the ability to operate with legitimacy if, heaven 

forbid, a catastrophic terrorist attack would ever to take place that 

killed dozens of Members of this body. 

By overwhelming vote of 306 to 97, the House voted to enact the 

Continuity and Representation Act of 2004, which established a 

framework for conducting expedited special elections to fill House 

vacancies resulting from extraordinary circumstances. I want to 

stress extraordinary circumstances. Unfortunately, this important 

piece of legislation was never taken up by the Senate during the 

last Congress, thus necessitating that we once again consider new 

continuity legislation in this Congress. There is an urgent need to 

pass a bill that preserves the continuity of Congress in the event 

of a catastrophic attack, and the reasons I think are obvious. The 

horrifying events of September 11, 2001, a day on which terrorist 

enemies of the United States murdered over 3,000 innocent American citizens in cold blood while striking symbols of our country’s 

economic and military might, painfully reminds us of the evil intent of the terrorists and their increasingly sophisticated and deadly attacks. 

That day forced each of us to consider the alarming possibility 

of a terrorist attack aimed at the heart of our Nation’s government 

here in Washington, D.C. Potentially carried out with nuclear, 

chemical or biological weapons of mass destruction that could decimate large portions of the Federal Government and kill or maim 

2 

hundreds of Members of Congress. If such an attack were ever to 

occur, the presence of strong national leadership would be more important than ever before. The American people would be desperately seeking the reassurance that their government remained 

intact and retained the capability of acting vigorously in the Nation’s defense. 

Therefore, it would be essential that a functioning Congress be 

in place with the ability to operate with legitimacy as soon as possible. This is not a comfortable scenario for any one of us to confront, for it compels us to contemplate the possibility of our own demise in a catastrophic attack. Nevertheless, as elected representatives of the people of the United States, we have a duty to ensure 

that the peoples’ House continues to function effectively and legitimately during times of national emergency. As we consider how 

best to ensure the continuity of the House of Representatives in the 

event of a devastating terrorist attack, it is vital that we reflect on 

fundamental roles that the House plays in our constitutional structure. 

When drafting the Federal Constitution, our Founding Fathers 

designed the House to be the branch of government closest to the 

people. They believed the only way this objective could be accomplished was through frequent elections. Consequently, the Constitution, in Article 1, section 2 clause 4, provides that vacancies 

in the House may be filled only through special elections. As a result, no Member has ever served in this House who was not first 

elected by the people he or she represents. 

Today I will be offering an amendment in the nature of a substitute to H.R. 841. This amendment presents a balanced solution 

to the complex and difficult issues we are considering. It will ensure the continued operation of the House during times of national 

crisis, while at the same time, preserving the character of the 

House as an elected body. The amendment is similar in structure 

and details to H.R. 841, which is virtually identical to the bill 

passed last year by the House. However, a number of modifications 

have been made to accommodate issues that have been raised by 

the minority, and our ranking member is here today, as well as 

concerns related to us by the States. The amendment requires expedited special elections be held within 45 days of the Speaker of 

the House announcing that more than 100 House vacancies exist. 

The candidates running the special elections will be selected either by the State political parties, which would have up to 10 days 

after the Speaker’s announcement to nominate the candidate or by 

other methods the State deems appropriate, including holding primary elections providing the State is otherwise able to meet the 45- 

day deadline for conducting the special election. 

Thus, under the amendment, the States are given greater flexibility regarding the process by which candidates can be selected for 

expedited special elections. Also under the amendment, a State will 

not have to hold an expedited special election if a regularly scheduled general election or previously scheduled special election were 

to be held within 75 days of the Speaker’s announcement, thus providing in essence, a 30-day extension for the States. 

The amendment maintains H.R. 841 provision that protects the 

ability of military personnel and overseas citizens to fully particiVerDate Aug 04 2004 08:46 Mar 14, 2005 Jkt 099622 PO 00000 Frm 00004 Fmt 6633 Sfmt 6602 E:\HR\OC\B622A.XXX B622A
3 

pate in the special election by instructing that absentee ballots be 

transmitted to such voters within 15 days of the Speaker’s announcement requiring that such absentee ballots be counted if received not later than 45 days after the State transmits them. The 

amendment makes clear that the expedited special election procedures set forth in this bill are equally applicable to the representatives of the District of Columbia and the U.S. territories. Moreover, 

the amendment includes language reiterating that the Nation’s voting and election laws will remain in effect for the expedited special 

elections. 

Finally, the amendment provides for judicial review of any legal 

challenge to the Speaker’s announcement. We are under no illusion 

that holding expedited special elections would be challenge-free for 

the States. Even under the best of circumstances, administering 

elections prevents many logistical hurdles. Nevertheless, a number 

of States already require House vacancies to be filled within 45 

days or less. Doug Lewis, executive director of the Election Center, 

testified before this committee last year stating that it appears the 

election administrators from combined responses nationwide feel 

that they can conduct an election within as few as 45 days. Thus, 

the majority opinion of the Nation’s chief election officials appears 

to be that 45 days would prove to be sufficient time to plan and 

prepare for an expedited special election. Therefore, I believe, the 

amendment I’m introducing to the Continuity in Representation 

Act for 2005 strikes the proper balance between the demand to fill 

House vacancies through the special elections in as short a time 

frame as possible, and the need for election officials and the voting 

public to have the time necessary to get ready for the election to 

make informed choices of who they are going to vote for. 

Consequently, I wholeheartedly support the amendment and invite my colleagues to join in passing this important measure out 

of the committee and sending it to the House floor. At this time, 

I would like to recognize the ranking member, Ms. MillenderMcDonald, and any other members. 

Ms. MILLENDER-MCDONALD. Thank you so much, Mr. Chairman. 

Mr. Chairman, I am pleased to have the opportunity to address 

this issue that is outlined in H.R. 841, the Continuity of Representation Act of 2005 and to discuss a significant amendment I intend 

to propose. I am not sure that the bill as currently designed in its 

current form can be improved enough to make it workable, but I 

am grateful to the chairman for scheduling this markup and for his 

willingness to accept some useful ideas from the minority to improve legislative language in part of the bill. We did accept the 

chairman’s invitation to look at the bill for what it is and to at 

least attempt to perfect it. But H.R. 841, Mr. Chairman, as introduced and with the forthcoming adoption of the manager’s amendment in the committee today, differs only slightly from H.R. 2844 

as passed last year by the House. I voted against that bill in the 

committee markup last year and I will likely do so again here 

today. 

The core problem remains. The bill’s rigid deadlines are tailormade to foster confusion and litigation at a time of future national 

crisis when the American people will need to renew the legitimacy 

of the elected representatives in the House. It imposes a new unVerDate Aug 04 2004 08:46 Mar 14, 2005 Jkt 099622 PO 00000 Frm 00005 Fmt 6633 Sfmt 6602 E:\HR\OC\B622A.XXX B622A
4 

funded mandate upon the States. In its zeal to expedite process, 

H.R. 841 compromises democracy. I say that after looking at the 

process in the last Congress. We have the benefit of hindsight and 

we should use that to refine our actions this year. It was apparent 

in the 108th Congress that the sponsors of H.R. 2844, which is virtually identical to this year’s version, had not carefully considered 

the impact of its provisions before the bill was put on the express 

track to the House floor. The Sensenbrenner bill was essentially a 

wish list of deadlines and other procedures which might be achievable in some States and in some circumstances following a future 

catastrophe, but not necessarily in other States under different conditions. 

That bill, as originally introduced, had a deadline of only 21 days 

to hold special elections, a number apparently made up out of 

whole cloth. There were no guarantees that the bill as structured 

would achieve the goal of national special election uniformity it 

sought. And some of us have reservations about whether that goal 

is desirable. The bill sets up conditions which must be met, conditions which would require States to amend their laws and sometimes their State’s constitutions to come into compliance. The 

States must essentially invent mechanisms to implement what may 

be radical changes in their own election laws and political structures. 

What could happen if the States failed to do so? Last year’s bill 

did not say. Neither does the new version. 

Two major amendments sponsored by the minority were accepted 

last year, one of them very reluctantly, on the House floor. The 

first amendment dealt with the time frame for sending ballots to 

overseas absentee and military voters. The other was adopted as 

the motion to recommit after the Rules Committee refused to allow 

Ranking Member Larson to present it in the Committee of the 

Whole in the form of an amendment. It was intended to protect 

major civil rights and voting rights laws, and laws to protect handicapped voters, from being gutted. What was most revealing is that 

the sponsors apparently never considered these basic issues themselves before they introduced the bill, nor did they attempt to 

amend it in committee to include them. 

During last year’s debate, Mr. Chairman, critics of the bill were 

attacked, not with a strong defense of the bill, but rather with unfair and misleading attacks on various ideas for constitutional 

amendments intended to plug gaps in the bill or to address related 

continuity of government issues. And I make that observation as a 

member who voted against not only the bill last year, but both Representative Baird’s constitutional amendment providing temporary 

appointments to the House and Representative Dreier’s constitutional amendment approved on January 4, 2005, the one 

masquerading as a House rule, which gives the House, without a 

quorum, all sorts of extraordinary powers which the Framers of the 

Constitution explicitly prohibited it from exercising. 

Now as for the bill before us today, H.R. 841, it purports to provide a maximum of 45 days for the entire special election process. 

But the requirement adopted last year in the motion to recommit, 

which I mentioned earlier, to comply with other applicable Federal 

5 

laws, may be incompatible with such a deadline. We don’t know 

how long these elections may take, even if this bill was enacted. 

But for purposes of this markup, I will take the 45 days at face 

value. The amendment, which I will shortly offer would allow a 

total of 60 days. The House last year rejected an amendment proposing 75 days. So I believe this is a reasonable compromise. In 

California, we currently have a special election in progress for the 

late Congressman Bob Matsui’s seat using approximately that time 

frame. The amendment would introduce great flexibility into the 

expedited process, to allow more time for the elections and to give 

States additional options on how to conduct them. 60 days is not 

a magic bullet, Mr. Chairman, any more than 45 days is, and members can find many supporters of different deadlines. 

Proponents of the bill have often cited Doug Lewis, executive director of the Election Center, which represents States and local 

election officials nationwide, but he has not endorsed this bill and 

has said in other venues that 45 days is still too short and that a 

time frame closer to 60 days would provide States with greater assurances of success. State and local election officials at election 

process forums over the last 2 years have raised questions about 

the time frame as well. And I have talked with Secretaries of State 

even before I came to the meeting today, and they are still not 

clear as to why the 45 days was chosen and not a longer period. 

In testimony prepared by this committee in September of 2003, 

Mr. Lewis framed the debate as follows and I quote: 

What is an election? Is that a date certain event so that voters can vote or is it 

more than that? Is an election in American democracy really a process and includes 

time for the identification of candidates, the ability of candidates to mount a campaign, to raise funds, to attract supporters, to inform the voters of what their 

choices are between individual contestants and then going to the polls to make that 

choice? The point is this: If it is only an event, then we can structure an event in 

a short time frame and carry out the events as flawlessly as possible. If however, 

you define it in the broader process terms, then you have to allow the process time 

to work. 

Mr. Chairman, I prefer to come down on the side of the interests 

of democracy. And my instincts as a candidate in many elections 

at the local, State and national level tell me that 45 days is simply 

too short. 

If my 60-day amendment were to be adopted, I then would propose technical changes in the bill’s provisions relating to military 

and overseas absentee voting without changing their substance, 

since these provisions as written in the bill are geared to the 45- 

day schedule. 

Mr. Chairman, of course, no House can bind a future one and the 

House can make its own judgment on seating Members based on 

the totality of facts in any potential election contest. However, 

since the intent of the bill is to fill vacancies in the House, we 

should not create artificial barriers to doing so. And I would remind my colleagues that nothing in the bill itself provides that a 

Member-elect would rush to the floor to be sworn in at the end of 

45 days, 60 days or any other such framework. States must correct 

their results, certify their returns, await receipt of absentee ballots, 

and possibly recount ballots in close elections. The 2004 Washington gubernatorial race demonstrates the possibilities of controversy and delay inherent in the election administration process. 

6 

I will put the rest of my statement in the record. But I do feel 

strongly about this issue because California has an election system 

in which people take great pride in exercising their franchise and 

don’t like being dictated to by anyone. The original bill would have 

gutted our State’s long-standing political traditions at a time when 

a reconstituted Congress needs to renew its legitimacy from the 

American people. 

[The statement of Ms. Millender-McDonald follows:] 

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The CHAIRMAN. I thank the gentlelady. Any other statements. 

Mrs. MILLER. I certainly want to begin by commending you, Mr. 

Chairman, as well as Chairmen Sensenbrenner and Dreier for all 

the work that all of you have put into this issue. The legislation 

we are going to be marking up today deals with the most serious 

situation, and so I commend everyone for the very serious consideration they have given this issue, as well as their commitment to 

achieve a solution that I think enjoys bipartisan support. The need 

for this legislation is so very important in the wake of the absolutely horrific attacks on our Nation of 9/11. And as we all remember so vividly, on that day, the enemies of freedom clearly targeted 

the pillars of our Nation. 

The terrorist attack at the World Trade Towers, which represented our economic freedoms. The enemies of freedom also attacked the Pentagon, which represents our military strength. And 

certainly by all accounts flight number 93 was targeted at either 

the White House or the Capitol building, both symbols of our 

Democratic form of government and of our freedom. If it had not 

been for the absolutely heroic actions by those passengers, really 

ordinary Americans who exhibited extraordinary bravery, that particular plane may very well have reached its intended targets. 

The results would have been unthinkable. So now we contemplate how best to prepare for the unthinkable. The Congress 

must ensure that our government remain strong and stable in the 

event of a catastrophic attack. As we grapple with this issue, we 

want to remind to ourselves that the U.S. House of Representatives 

is the peoples’ House. For the entirety of our national existence, 

Members of the House have been directly elected by the people and 

even a terrorist attack should not be reason enough to change its 

historical content. 

Article 1, section 2 of our Constitution states when vacancies 

happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies. The 

operative phrase is election. In the bill we are marking up today 

continues the tradition we fell firm to for as I say the entirety of 

our national existence certainly allows us to remain true to the 

course that was charted for us by our Founding Fathers. 

Our Constitution and our laws have already addressed the other 

branches of government. The President would be replaced quickly 

by the existing line of succession. The courts would be replaced 

quickly by presidential appointment. The Senate would be reconstituted very quickly through the gubernatorial appointments, as the 

17 amendment outlines. 

Only the House, the House of Representatives, would not be able 

to function quickly during a time of national emergency because of 

the constitutional provision which requires direct elections of the 

Members. I believe that this legislation that we are considering 

today is a very well thought out and reasonable approach which 

will serve our Nation well into the future. This bill requires special 

elections to fill vacancies in the House of Representatives within a 

45-day period after a vacancy is announced by the Speaker of the 

House in the extraordinary circumstances that the number of vacancies exceeds 100. Some will argue as the, minority leader just 

did, that more time is necessary, but I certainly disagree with that. 

19 

Last week this committee held a hearing on the Help America 

Vote Act. One effect of that law that was not discussed actually 

was its impact on election officials in preparing for a special election. Local clerks now have the tools would HAVA, actually, to conduct a special election much more easily than they could have previously. And this is not to say such an undertaking would be easy. 

It would be difficult. 

I can tell you, based on my experience as the chief elections officer in the great State of Michigan previously, I am very confident 

that our election officials across our Nation will rise to the occasion 

to complete the required work especially in a time of national 

emergency. It has been said that the price of freedom is remaining 

ever vigilant and the enemies of freedom will find that America is. 

Thank you very much. 

The CHAIRMAN. Thank the gentlelady for her statement. Mr. 

Reynolds? If not, the Chair lays before the committee H.R. 841 

open to the amendment and the Chair offers an amendment in the 

nature of a substitute. And this is the amendment I previously 

mentioned with the change and I appreciate the minority made to 

make the bill better and to improve a couple of those issues in the 

bill. Any discussion on this? 

[The information follows:] 

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Ms. MILLENDER-MCDONALD. Mr. Chairman, at this time I would 

like to offer an amendment to the amendment in the nature of a 

substitute which has been distributed to the members. 

The CHAIRMAN. The clerk will report the amendment. 

[The information follows:] 

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The CLERK. Amendment offered by Ms. Millender-McDonald to 

the amendment in the nature of a substitute. Section 26 B 2 of the 

revised statutes of the United States as proposed to be added by 

the amendment, strike 45 days and insert 60 days. 

The CHAIRMAN. Question is on the amendment which was previously discussed. Those in favor of the amendment will say aye. 

Those opposed will say nay. In the opinion of the Chair, the nays 

have it and the amendment fails. Question is now on the amendment in the nature of a substitute. Those in favor of the amendment will say aye. Those opposed will say nay. The amendment is 

agreed to. The Chair recognizes Mr. Ehlers for the purpose of offering a motion. 

Mr. EHLERS. Mr. Chairman, I move that the committee order 

H.R. 841 as amended be reported favorably to the House of Representatives. 

The CHAIRMAN. Moved and seconded. The question is on the motion. Those in favor of the motion will say aye. Those opposed will 

say nay. In the opinion of the Chair, the ayes have it. The motion 

is agreed to. And the committee orders that H.R. 841 be reported 

favorably to the House of Representatives. 

I ask unanimous consent that members have 7 legislative days 

for statements and materials to be entered into the appropriate 

place in the record. Without objection, the material will be so entered. I ask unanimous consent that the staff be authorized to 

make technical and conforming changes on all matters considered 

by the committee at today’s meeting. Without objection, so ordered. 

Ms. MILLENDER-MCDONALD. Mr. Chairman, I now announce, 

pursuant to the provisions of clause 2(1) of rule XI, my intention 

to seek not less than the two additional calendar days provided by 

that rule to prepare additional views to be filed with the committee 

report. 

The CHAIRMAN. The gentlelady is in order for her request. Without objection, the request is granted. I want to thank the 

gentlelady for the thoughtful amendments and the amendment you 

proposed. I thank the members for your time. And I also want to 

recognize all of the special guests we have today visiting the Capitol, but also one of our State representatives, Mary Taylor from 

the 43rd District in Ohio. 

Ms. MILLENDER-MCDONALD. Mr. Chairman, let me just thank 

you for at least bringing this bill to the committee. It certainly 

could have attempted to bypass us and gone directly to the floor. 

It is because of your leadership that we had at least an opportunity 

to speak on it. 

The CHAIRMAN. We did that when Congressman Larson was 

here. And your request, I think it was a right request for you to 

make. With that, if there is no further business, the committee will 

be adjourned. 

[Whereupon, at 2:30 p.m., the committee was adjourned.]