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96–926 PDF 2004

S. HRG. 108–701

ENSURING THE CONTINUITY OF THE UNITED

STATES GOVERNMENT: THE CONGRESS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

SEPTEMBER 9, 2003

Serial No. J–108–37

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 1

prepared statement and attachment .............................................................. 61

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 83

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 99

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 17

prepared statement .......................................................................................... 168

WITNESSES 

Baird, Hon. Brian, a Representative in Congress from the State of Washington .................................................................................................................... 9

Dreier, Hon. David, a Representative in Congress from the State of California ..................................................................................................................... 3

Hall, Thad, Program Officer, The Century Foundation, Washington, D.C. ........ 26

Lewis, R. Doug, Executive Director, The Election Center, Houston, Texas ....... 22

Ornstein, Norman J., Senior Counselor, Continuity of Government Commission, and Resident Scholar, American Enterprise Institute, Washington, 

D.C. ........................................................................................................................ 20

Wright, Samuel F., Director, Military Voting Rights Project, National Defense 

Committee, Arlington, Virginia ........................................................................... 25

QUESTIONS AND ANSWERS 

Responses of Thad Hall to questions submitted by Senator Leahy .................... 36

Responses of Douglas Lewis to questions submitted by Senator Leahy ............. 41

Responses of Norman Ornstein to questions submitted by Senator Leahy ........ 45

Responses of Samuel F. Wright to questions submitted by Senator Leahy ....... 48

SUBMISSIONS FOR THE RECORD 

Baird, Hon. Brian, a Representative in Congress from the State of Washington, prepared statement and attachment ..................................................... 57

Dreier, Hon. David, a Representative in Congress from the State of California, prepared statement and attachments .................................................... 65

electionline.org, Doug Chapin, Director, Washington, D.C., letter ...................... 80

Fong, Cory G., Deputy Secretary of State, State of North Dakota, Bismarck, 

North Dakota, letter ............................................................................................ 84

Gans, Curtis, Vice President and Director, Committee for the Study of American Electorate, Washington, D.C., prepared statement ................................... 86

Hall, Thad, Program Officer, The Century Foundation, prepared statement .... 89

Ho, James C., Majority Chief Counsel, Subcommittee on the Constitution, 

Civil Rights and Property Rights, Committee on the Judiciary, United 

States Senate, Washington, D.C., responses of State and local election 

officials to inquiries about any 21-day expedited special elections regime ..... 101

Lewis, R. Doug, Executive Director, Certified Elections Registration Administrator (CERA), Houston, Texas, letter ................................................................ 171

Ornstein, Norman J., Senior Counselor, Continuity of Goverment Commission, Resident Scholar, American Enterprise Institute, Washington, D.C., 

prepared statement .............................................................................................. 177

Paul, Hon. Ron, a Representative in Congress from the State of Texas, prepared statement ................................................................................................... 195

Page

IV

Phillips, Howard, Chairman, Conservative Caucus, Vienna, Virginia, statement ...................................................................................................................... 197

Rice, Charles E., Professor Emeritus, Notre Dame Law School Visiting Professor, Ave Maria School of Law, Ann Arbor, Michigan, statement ................ 202

Schlafly, Phyllis, Constitutional Attorney, Briarcliff, St. Louis, Missouri, letter .......................................................................................................................... 206

Simpson, Hon. Alan, and Hon. Lynn Martin, Commissioners, Continuity of 

Government Commission, Washington, D.C., statement .................................. 207

Washington Times, Continuity of Congress, September 12, 2003 ....................... 212

Wright, Samuel F., Director, Military Voting Rights Project, National Defense 

Committee, Arlington, Virginia, letter and attachments .................................. 214

(1)

ENSURING THE CONTINUITY OF THE UNITED 

STATES GOVERNMENT: THE CONGRESS 

TUESDAY, SEPTEMBER 9, 2003 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. John Cornyn presiding. 

Present: Senators Cornyn and Leahy. 

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. This hearing of the Senate Judiciary Committee will come to order. I want to thank, first of all, Chairman 

Hatch for scheduling this important hearing. 

Earlier this year, the Continuity of Government Commission 

issued a unanimous report recommending measures to ensure the 

continuity of Congressional operations. That same morning, I spoke 

on the floor of the Senate to praise the commission for its hard 

work and its contribution, and announced that I would hold hearings in the Subcommittee on the Constitution on this issue. 

Shortly thereafter, Chairman Hatch was gracious enough to invite me to Chair the full Committee proceedings here, rather than 

through the Subcommittee, and obviously I accepted his offer. I 

want to thank him again today for his leadership of the Committee 

and for giving serious attention, as I do all of the witnesses here, 

to something that needs our attention. 

I also want to express my gratitude to Senator Leahy and his 

staff—Senator Leahy will be here with us shortly—for working 

with my office to put together this hearing, which is entitled ‘‘Ensuring the Continuity of the U.S. Government: The Congress.’’ 

Two years ago, America suffered its most destructive act of terror 

in history. Congress responded swiftly. The very next week, Congress appropriated funds to bolster national security, stabilize our 

economy, and provide for the families of victims, and also enacted 

legislation to secure our airports and authorized the use of necessary military force. To date, however, Congress has failed to ensure that the vital institutions of our Government will continue to 

operate on behalf of the American people should another attack 

occur. 

Two years is too long. So this morning we will consider what 

measures are necessary to guarantee continuity of Congress. Next 

Tuesday morning, I will co-chair a joint hearing with the Chairman 

2

of the Rules Committee, Senator Lott, on proposals to reform the 

presidential succession statute. Future hearings on the continuity 

of Government are also planned. 

Congress cannot constitutionally act without a majority of its 

members. Article 1, section 5, of the Constitution expressly provided that a majority of each House shall constitute a quorum to 

do business. Our Constitution is explicit on this point because our 

Founders believed it was fundamental to our representative form 

of Government. 

Alexander Hamilton explained in Federalist 59 that the Constitution empowers the States to shut down Congress, if it wishes, 

by refusing to send representatives. In fact, during the first Congress, neither the House nor the Senate was able to operate for an 

entire month because a majority of Representatives and Senators 

failed to appear for duty. Both chambers had to wait until a 

quorum, consisting of a majority of the whole number, was present. 

This vulnerability was deliberate. As one delegate in 1787 urged 

his colleagues, ‘‘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.’’ 

Congressional power exercised by just a handful of members is 

not representative government and it is constitutionally dubious. It 

raises serious questions of democratic legitimacy. The Founders 

properly rejected the notion that a small body of members from one 

region of the Nation might enact national legislation or confirm 

Federal officials who would have nationwide jurisdiction. 

This commitment to federalism and national representation has 

a cost, however. Under the Constitution’s requirement of a majority 

for a quorum, terrorists could shut Congress down by killing or incapacitating a sufficient number of Representatives or Senators. 

Our ability to ensure the continuity of Congress under the current Constitution is woefully limited. States have the power to 

allow their Governors to appoint Senators in the case of vacancies, 

and 48 States have elected to do so. But the Constitution provides 

no immediate mechanism for filling vacancies in the House, nor for 

addressing incapacities in either chamber. 

Vacancies in the House can only be addressed by special election. 

The problem is, of course, that that can take months to conduct 

special elections, for reasons of mechanical feasibility, democratic 

integrity, and the rights of military and other absentee voters. 

What is more, incapacities cannot be addressed at all, although 

people often forget this problem affects the Senate no less than the 

House. If 50 Senators were in the hospital, unable to perform their 

duties, or resign, they could not be replaced. The Senate could be 

unable to operate for up to two full election cycles, a 4-year period. 

According to the Continuity of Government Commission, a bipartisan panel of former Congressional leaders and government officials from across the political spectrum, this commission has unanimously endorsed a constitutional amendment to ensure continuity 

of Congress in case of catastrophic attack. Just as the 25th Amendment ensures continuity of the presidency, the proposed amendment would ensure continued Congressional operations following a 

terrorist attack. 

3

The commission deserves our attentive hearing and respectful 

consideration, as well as the views of Members of Congress and 

others who have views to offer on this subject. Our hearing today 

will explore not only the commission’s recommendations, but the 

views of Members of Congress and others on this subject. 

As we mourn the tragedy of September 11, we should also take 

some comfort in the fact that further attacks within our borders 

have been thus far avoided. That is true because, in part, Congress 

has upgraded our ability to prosecute the war on terrorism and reorganized our Federal Government to bolster our efforts at homeland security. 

Had the events of September 11 unfolded differently, however, 

none of this legislation might have been enacted in a timely fashion. United Airlines Flight 93 was likely headed for the Capitol. 

But for a late departure and the ensuing heroism of passengers on 

board, the ability of Congress to function might have been destroyed. 

In an age of terrorism and a time of war, few things could be 

more important than ensuring that the U.S. Government, the Nation’s most vital instrument of national security, is failsafe and 

fool-proof against even the most devious and destructive of terrorist 

plots. 

No one likes to plan for their own demise, but the failure to do 

so, in my opinion, in this regard would be not only an abdication 

of our duty, but it would be foolish and dangerous. We must therefore 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. Two years is too 

long and the time to plan for the unthinkable is now. 

[The prepared statement of Senator Cornyn appears as a submission for the record.] 

We have on our first panel two distinguished members of the 

House of Representatives, Hon. David Dreier and Hon. Brian 

Baird. 

Gentlemen, we appreciate you being here today to offer your 

views. 

I know Senator Leahy is coming. Ordinarily, I would turn to him 

for his opening statement, but we will break and do that when he 

is able to be here with us. So at this time, I will recognize Hon. 

David Dreier for his opening statement. 

STATEMENT OF HON. DAVID DREIER, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF CALIFORNIA 

Representative DREIER. Well, thank you very much, Mr. Chairman. Let me say that our friend, Orrin Hatch, has been known for 

having made some great decisions. Clearly, his most recent was to 

have you preside over this full Committee hearing. Once again, 

Orrin Hatch has demonstrated his brilliance. We are happy to have 

you presiding over it. As you know, I have long been an admirer 

of yours and your work in Texas, and appreciate the fact that you 

are deliberatively taking on this challenge with a very open mind 

as you look at the very fine recommendations that came forward 

from the hard work of the commission, and also the responsibility 

that we have. 

4

You are absolutely right. I mean, you are the only Senator who 

is here right now. There are two members of the House of Representatives here. You have some other distinguished witnesses, 

but this is obviously not an issue that we like to spend a lot of time 

contemplating. 

As you said in your opening remarks very appropriately, planning for your demise is not something that is particularly intriguing, but we do have a responsibility to look seriously at the challenge of the continuity of Congress. 

Your closing statement was really right on target. It is important 

for us to send a signal to those who would do in the United States 

of America and our Government that we are going to ensure that, 

as President Bush demonstrated 2 years ago this week, we are 

going to be able to stand up to them and ensure that there is a 

continuation of this very, very important experiment that we have 

in representative democracy. 

So I congratulate you for holding the hearing and for your focus 

on this issue. Of course, it is, again, as you pointed out, very timely, as this week marks the second anniversary of September 11. I 

do believe that we have, obviously, as I have said, some real challenges ahead of us. 

My message, Mr. Chairman, is a pretty simple and basic one, 

and that is I want to encourage people to go slowly on this. I was 

just talking to my friend, Norm Ornstein, who is going to be testifying here in a few minutes, and he said he has spent a lot of time 

looking at this and he has come to the conclusion that the constitutional amendment is the right thing. I am not there. I want to say 

that I do believe that we just need to be very, very careful before 

we look at that as the panacea. 

I have in my written testimony, which I hope you and your colleagues will have a chance to look at, gone through some very detailed analyses of the findings of the Commission, as well as some 

overall thoughts and recommendations that I hope you will look at. 

You said that we are from the people’s House. Brian has worked 

very hard on this issue, as well, and I have the highest regard for 

him. But I want to say that I would like to begin by quoting a very 

distinguished former member of the U.S. Senate, the late Senator 

John Stennis, from Mississippi, when he said, ‘‘I believe it is one 

of the great heritages of the House of Representatives that no person has ever taken a seat or cast a vote in that body except by virtue of election by the people. That is a great pillar of our form of 

government. . .’’ I think Senator Stennis was right on target 

when he made that statement. 

As you know, the idea of a constitutional amendment to allow for 

appointment of Representatives following a national crisis is not a 

new idea. It is something that has been contemplated before, more 

by this body than the other body. 

During the Cold War, a great number of constitutional amendments were proposed and at least three passed here in the Senate. 

However, even facing the prospect of mass attacks from numerous 

Soviet nuclear warheads and chemical and biological weapons, resulting in the decapitation of not only the Capitol, but most of our 

major cities, the House chose to oppose amending the Constitution 

to allow for appointment of its members. 

5

The House has always been known, Mr. Chairman, as the people’s House. The Constitution requires, under Article I, section 2, 

that the House ‘‘be composed of Members chosen every second year 

by the people of the several states.’’ Now, many in the House revel 

in the fact that every member of the body has always been elected. 

There has been no exception, as that is what the Constitution has 

dictated. In fact, the House of Representatives, as you know, is the 

only Federal office where no one has ever served without first having been elected, and I think that is something we really need to 

underscore. 

The Senate has always been filled differently from the House. 

Originally constituted by appointment by the State legislatures, it 

was not until the 20th century that the Senate became directly 

elected through the 17th Amendment to the Constitution that provides that ‘‘the Senate of the United States shall be composed of 

two senators from each state elected by the people thereof. . .’’ 

The 17th Amendment further outlines how the executive authority shall issue writs of election to fill vacancies, but the legislature 

from any State ‘‘may empower the executive thereof to make temporary appointments until the people fill the vacancies by election 

as the legislature may direct.’’ Thus, the amendment allows for 

temporary appointment and election under control of the State legislature. 

We hope, Mr. Chairman, that Senators will be able to understand why I and many of my colleagues are pursuing a statutory 

approach, pursuant to another constitutional provision, which is 

Article I, section 4. We contend that this provision is part of the 

Constitution to allow the institutions to preserve themselves 

through elections which Congress can regulate. 

The provision states, ‘‘The times, places and manner of holding 

elections for Senators and Representatives shall be prescribed in 

each State by the Legislature thereof, but the Congress may at any 

time by law make or alter such regulations, except as to the places 

of choosing Senators.’’ 

We believe that a Federal law should be passed requiring the 

States to have a mass vacancy special election within a very limited time period. I will talk specifically about our proposal in a moment, Mr. Chairman, but the real point is for you to understand 

that any constitutional amendment calling for appointment of 

House members will meet considerable opposition in the House, 

clearly complicating the passage of it. I would urge you to examine 

our approach as the best method of preserving our institutions in 

times of crisis. 

Mr. Chairman, the Founding Fathers created a republic which 

has become the longest continuous constitutional democracy in the 

world, and they did so with unparalleled genius. The Framers did 

not come upon this great document in a single flash of inspiration. 

Rather, they spent months, as you know very well, discussing, arguing and voting on the subject of how the Government should be 

formed. In the end, they wisely created a House and a Senate with 

differing size, constituency, term of office, procedural rules, duties, 

and prerogatives. 

Nor did they casually adopt the direct election of Representatives 

by the people, while granting States the power of selection of SenVerDate 0ct 09 2002 11:20 Dec 15, 2004 Jkt 084328 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96926.TXT SJUD4 PsN: CMORC
6

ators. However, many came to believe as the delegate James Wilson, when he stated his desire for a vigorous Government whose 

power ‘‘flow[s] immediately from the legitimate source of all authority—the people. . .The government ought to possess not only

. . .the force but [also]. . .the mind or sense of the people at 

large.’’ 

Delegate George Mason concurred: ‘‘The people will be represented [in the House]; they ought therefore to choose the representatives.’’ Delegate John Dickerson considered it ‘‘essential that 

one branch of the legislature should be drawn immediately from 

the people; and as expedient that the other should be chosen by the 

Legislatures of the States. This combination of the State Governments with the National Government was as politic as it was unavoidable.’’ Of course, the Father of the Constitution, Mr. Chairman, James Madison, held that it was ‘‘a clear principle of free government’’ that the people must always elect at least one branch of 

the legislature. 

In the end, the Constitutional Convention delegates saw, as 

Hamilton noted in Federalist 59, that direct election by the people, 

and not selection, which could be held hostage to the whims or 

even inaction of State government leaders, is the only way to ensure a national government, one that reflects the will of a majority 

of Americans. Hamilton sums up this thought on this provision of 

the Constitution with his very famous statement that ‘‘Every government ought to contain in itself the means of its own preservation.’’ 

Now, Mr. Chairman, I will tell you that I am going to just take 

a moment to go through our legislation and I do want to say that 

one of the members of the commission, highly respected, our former 

Minority Leader, Bob Michel, has said that a constitutional amendment should really be the last resort. Mr. Chairman, I would say 

that the Constitution itself contemplates this process in Article I, 

section 4, where it gives to the Congress, again, the power over the 

times, places and manner of election. 

I have joined with several of my very distinguished colleagues in 

support of legislation that provides for expedited special elections 

to fill mass vacancies in the House. The list of the cosponsors: I am 

joined by the Chairman of the House Judiciary Committee, Jim 

Sensenbrenner; Steve Chabot, from Ohio, who is on the Judiciary 

Committee. The former Secretaries of State who serve in the House 

of Representatives, Tom Cole, who is from Oklahoma, and Candice 

Miller, who is from Michigan, join. And, of course, your fellow 

Texan, Ron Paul, who, as, we all know, is an ardent constitutionalist, is also a cosponsor of the legislation. 

The legislation operates within the checks and balances underpinning our Constitution and recognizes, as Madison did in Federalist 52, that ‘‘It is particularly essential that the [House] should 

have an immediate dependence on, and intimate sympathy with, 

the people. . .[E]lections are unquestionably the only policy by 

which this. . .can be effectually secured.’’ 

Our bill, the Continuity of Representation Act of 2003, H.R. 

2844, protects the people’s House. It requires expedited special 

elections for the House in the case of a catastrophe that results in 

more than 100 vacancies, such as would be the case if, for example, 

7

as you discussed in your opening remarks, as well-planned terrorist 

strike were to be tragically successful. 

If such exceptional circumstances exist as having more than 100 

House members killed, this legislation allows the Speaker of the 

House to call for rapid special elections in order to reconstitute the 

House. This approach has the support of the Speaker of the House, 

Dennis Hastert, who said it would allow Americans to ‘‘retain their 

local voice in Washington. . .without changing the Constitution.’’ 

The report of the commission begins by stating, ‘‘On average, 

states take 4 months to hold special elections, and in the aftermath 

of a catastrophic attack, elections would likely take much longer.’’ 

Now, Mr. Chairman, this four-month figure is based on an average reached by looking at the special elections since the 99th Congress. This average is a small sample by which to judge a situation 

with mass vacancies. Looking more broadly, the report contains 

data showing that more than one-third of the States have laws limiting the time on special elections from 28 to 127 days, averaging 

84 days. 

We believe that elections, especially in times of crisis, can take 

place in a much shorter period of time. The report by the commission postulates later that under the current constitutional arrangement, there is no effective way to begin filling House vacancies in 

less than 3 months after an attack. 

The data provided by the report of the commission shows that 

currently laws are in effect to start the filling of vacancies earlier. 

Eight States currently have special elections limited to less than 90 

days, with the average being 55 days. There are also 6 States averaging 90-day limits. This means that after vacancies are declared, 

then 14 States under their current laws would begin filling their 

vacancies. These include New York, California, and Texas, with 

substantial populations, as you and I certainly know, Mr. Chairman. Judging the impact of mass vacancies on special elections 

solely on the relatively few special elections sampled shouldn’t 

carry that much weight. 

Now, as I mentioned, a number of States already have special 

elections laws that provide in non-emergency circumstances for 

rapid elections, no later than 28 days in Minnesota and between 

30 and 40 days in New York. California, my State, has provisions 

for special elections in the event of a catastrophe that require them 

to be held within 63 days, while special elections in non-emergency 

situations have up to 119 days. 

It is not unreasonable to think that the American people in individual districts across the Nation can choose a representative in 21 

days. If September 11 showed us anything, it is that Americans 

pull together in times of disaster and they accomplish amazing 

things. 

Indeed, we believe that it is just loopy or silly to argue that finding polling places, printing ballots, and assembling volunteers, as 

some have tried to suggest, would stand in the way of the national 

will to reconstitute the House of Representatives in a time of crisis. 

Some of those who advocate a constitutional amendment to appoint temporary stand-in members, Mr. Chairman, justify the need 

for appointing members because of the vitally important business 

that must be done immediately by the House of Representatives in 

8

the wake of a national crisis. In my view, the Framers intended 

that such important decisions should be made in the House not by 

someone who is selected for the people, but by someone who is 

elected by the people. 

Mr. Chairman, the Senate does not need a constitutional amendment to deal with vacancies. You have one already, as you know, 

the 17th Amendment. One must ask, is there some desire on the 

part of some Senators to nationalize Senate appointments by requiring Governors to choose only from a pre-selected list of candidates? Suffice it to say that many questions for appointment do 

remain unanswered. 

Let me summarize, Mr. Chairman, by saying that I am troubled 

by the language of the amendment that the commission recommended. Yes, it does appear simple in form, but I am concerned 

that beneath its plain brown wrapper lies the constitutional equivalent of a computer virus or worm. Over time, I am concerned that 

it will eat away at other provisions of the Constitution, forcing the 

Framers’ checks and balances to crash under the potential statutory fixes that such an amendment would allow. 

Moreover, the commission has left unanswered a much more difficult question, and you raised it in your remarks, and that is incapacitation, particularly mass incapacitation. Unlike vacancies, incapacitation has never been fully addressed by the Congress, and the 

commission acknowledged the problems inherent in answering this 

whole issue. 

Mr. Chairman, let me close by saying that I understand the desire for expediency in times of crisis. Appointing stand-in members 

by the executive in each State or through a list of heirs to the seat 

provided by each sitting Representative may seem expedient, even 

prudent, to some. It may seem easier than planning, creating, and 

implementing the infrastructure necessary to ensure rapid and fair 

elections in the face of mass vacancies. 

However, Mr. Chairman, in the long term I believe that after a 

national crisis, when large numbers of members of the House have 

been killed, and even the existence of our republic may be at stake, 

we should still choose to have faith in elections and not selections. 

In a national crisis, printing ballots and conducting elections will 

not be insurmountable obstacles to Americans. Legitimacy, not expediency, should be our concern, and I believe that America is up 

to the challenge. 

Again, I thank you very much for holding the hearing. I do have 

a chart that I would like to commend to you that I would like to 

include in the record which does go through the time frame for 

holding special elections. 

As you know, we have an election that is coming up four weeks 

from today in California. It is a very unusual recall election. This 

process has existed since 1911 and we have never seen it, and I 

will tell you people are trying to describe it often as a zoo and a 

circus and all kinds of things. 

But I will tell you that it is fascinating how the people are going 

to be making this decision and making this choice, and it is being 

done in an expeditious manner, taking into concern a number of 

the issues that you raise, as there have been four or five court challenges to this that have come forward and it still is moving ahead. 

9

I would also like to include, Mr. Chairman, specific references to 

the constitutional provisions that do insist upon and allow for the 

provision of elections. 

I thank you very much for holding this hearing and for your forbearance in letting me go through my testimony. 

[The prepared statement of Representative Dreier appears as a 

submission for the record.] 

Senator CORNYN. Thank you, Congressman Dreier, for your 

thoughtful comments. I know there is a divergence of opinion, and 

that is not a bad thing. We are going to hear from others who have 

different views, but it is very helpful to have the benefit of your 

views. Certainly, your written statement and that of Congressman 

Baird and all other witnesses will be made part of the record, without objection. 

I do want to at this time make part of the record letters that we 

have received from State and local officials—and you and I discussed this very briefly before the hearing started—expressing 

some concern with expedited elections and the challenges that that 

would present to them. 

I want to now turn to Congressman Baird and allow him to give 

his opening statement, and then I will have a few questions for 

each of you and let you go back to work on the other side of the 

dome. 

STATEMENT OF HON. BRIAN BAIRD, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF WASHINGTON 

Representative BAIRD. Thank you, Mr. Chairman. I commend 

you for recognizing the importance of this issue, and Senator 

Hatch, as well, and Senator Leahy. 

It has been too long. I have great respect for Chairman Dreier, 

and he is wise in suggesting that we not move hastily to solve this 

issue, but it has been 2 years. The entire Constitution was written 

over the course of a summer, and it has been 2 years that we have 

known about this fundamental core vulnerability not only in the 

continuity of the House of Representatives, but in the presidential 

succession, and we have failed to act. 

Fortunately, we have not had a necessity to take recourse in 

whatever solution we might come up with, but that is due to good 

fortune and perhaps our actions in preventing the terrorists. But 

should that day arise when we need to have a solution to the continuity question and we have not solved it, we will have done a 

grave disservice to this country and to the world. 

I am somewhat haunted by what I believe is a very real possibility that the American people are going about their daily business 

and suddenly the announcement comes across the television and 

the radio that we have received word of a nuclear weapon being 

detonated in the Nation’s Capital. All members of the House and 

Senate are believed to have perished. The President and the Vice 

President and most members of the Cabinet who were in D.C. at 

the time, the Supreme Court, thousands of Government workers, 

and even more average civilians are believed to have been killed. 

We will have more news in a minute. 

If that announcement happens, we absolutely must have a constitutionally unambiguous means of telling the American people 

10

what happens next. How do we put our Government back together? 

Where are the fundamental pillars of checks and balances, separation of powers? Who fills what post, and how do we get this wonderful democratic republic back on its feet again? 

We cannot have prolonged periods of uncertainty and ambiguity, 

we cannot have power struggles. The situation we face today leaves 

the door wide open for precisely those scenarios. 

Tom Mann and Norm Ornstein and their working group are to 

be tremendously commended for their efforts in trying to address 

this, and I think they have made some outstanding recommendations. I don’t agree with all of them, but their ground work in understanding the scope of the problem and proposing different solutions is admirable and of tremendous service to this great country. 

On top of that, the working group within the House of Representatives, chaired by Chris Cox and Martin Frost—and Chairman 

Dreier was part of that as well—I believe did an extensive review 

of a number of these issues. So when we say we must not act hastily, that is true, but we have had 2 years to look at this and I think 

we have a sense of what the problems are. 

What I would like to do very briefly is respond to some of the 

concerns of those who have legitimate questions about the issue of 

temporary replacement, then suggest a possible alternative. 

First of all, all of us who serve in the House of Representatives 

are justifiably proud that we serve in a body to which one must be 

directly elected. That tradition is as old as this country and we are 

proud and honored to be part of that tradition. 

But at the same time, we must recognize that we live in a time 

in which sudden and complete destruction can rain down upon this 

body and upon this Nation, and we need to prepare for that. It is 

a possibility that I do not think was contemplatable by the Framers. Frankly, in their day, if someone had managed to kill all of the 

Senators and House members and the President and Vice President, we had lost a war and that was it. Today, it is entirely possible to kill all of us and the Nation preserves. The question is who 

governs that nation and how do they govern it during that time of 

crisis? 

So we have to recognize the importance of the tradition of direct 

election, but we also have to recognize that new conditions may require new solutions, and I would argue that the sudden destruction 

of the Capitol is a new condition. 

I would also suggest that some of the issues that have been 

raised about how we might cope, I find intellectually unsatisfying. 

For example, some people have suggested that we can do entirely 

without a House of Representatives for a period of five weeks or 

more. During the five weeks post-September 11, a number of essential acts were performed by the Congress, the House and Senate 

working together, that presumably would be put on hold. 

I find it supremely ironic that those who steadfastly adhere to 

the principle of direct election of the House would, through that 

very insistence, allow the entire country to be run by thoroughly 

unelected individuals, most likely Cabinet members, who frankly 

most Americans probably have no name recognition of, who were 

never elected, and who would fill the role of the presidency, preVerDate 0ct 09 2002 11:20 Dec 15, 2004 Jkt 084328 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96926.TXT SJUD4 PsN: CMORC
11

sumably then assume extra-constitutional powers, including possibly the declaration of war and the launching of nuclear weapons. 

So to say that the principle of direct election is important is absolutely true, but principles of separation of powers and checks and 

balances are equally true. And I think you could look through either party administrations over the last several decades and say 

there are some Cabinet members with whom we would all be comfortable should they fulfill the role of the presidency. 

I still, regardless of how much I respect those individuals, respect that they should have checks and balances, particularly with 

the declaration of war. But I would add that there have been Cabinet members or Presidents Pro Tem of the Senate or Speakers of 

the House whom we may not necessarily feel so comfortable with 

were they to move to the presidency with no checks and balances. 

So for me, it is again ironic to say that election by the people is 

so essentially important that we will let unelected people run this 

country with no checks and balances. 

I also believe that it is tremendously important that we recognize 

the realities of what might happen if we try to expedite an election 

in the way some have suggested. One of the proposals calls for the 

major political parties to nominate the candidates who would serve 

in the hastily arranged special elections. There, it seems to me we 

have an immediate disenfranchisement of the people to a significant degree. I am not sure how independent parties would be handled in that. 

But beyond that, if you expedite election in three weeks, are we 

doing this in the name of an election or do we actually have a contemplative process in which people can thoroughly evaluate the 

qualifications of the candidates and the candidates have the opportunity to present their views before the people? 

As an alternative to either leaving the House vacant for five 

weeks or more, to leaving an unelected person in charge of the entire country, to a rushed election that doesn’t do justice to the process, it is possible to suggest that we temporarily appoint replacement for House members. 

Now, let me use my State as an example. In the State of Washington, a number of tremendous statesmen could be nominated to 

fill those posts, and let me share with you some of these folks you 

know well. Senator Slade Gorton is from the other party, but I 

have to tell you if I were to perish and he were to be nominated 

in my stead, he would do an outstanding job of taking care of this 

country in the brief interim until a special election could take 

place; former Speaker of the House Tom Foley, Al Swift, Sid Morrison—people from both parties with exemplary qualifications, 

statesmen and states women who would serve this country with 

great skill in a time of profound crisis. 

Are we to believe that these experienced, accomplished, wise individuals, if temporarily appointed, would be worse for the country 

than a complete vacancy of House functions and the assumption of 

extra-constitutional authority by unelected people filling the role of 

President? I find that somewhat of a reach. 

The people in electing us to be their representatives here thereby 

empowered us to make profound decisions on their behalf, decisions 

about whether or not the country goes to war, decisions about taxVerDate 0ct 09 2002 11:20 Dec 15, 2004 Jkt 084328 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96926.TXT SJUD4 PsN: CMORC
12

ation, indeed decisions about all the laws of this land. It follows, 

to me, that an amendment that would authorize elected representatives to appoint temporary replacements in the event of their 

death or incapacity would be an acceptable response in the short 

term. 

Mr. Dreier is correct. We do not want to abandon the principle 

of direct election in the House. No one is suggesting that over the 

long run. What we are saying is that extraordinary circumstances 

may call for special conditions and special responses. 

At most, I think these appointed individuals would serve for 

three to 5 months, depending on the circumstances necessary for 

a direct election. But in that time, important work would be done, 

and I think they would do it well if chosen wisely. They would, at 

the same point, be subject to subsequent election. The Framers argued that one of the constraints upon the actions of elected representatives is the prospect of a subsequent election. That would 

apply to those who were appointed. 

So the principle I am trying to address here is, yes, we value direct election, but we also value the House of Representatives and 

its constitutional authority, and I don’t want to abandon that for 

five weeks or more during the time of gravest national crisis to people who are almost entirely certain to be unelected. 

We can pretend that a handful of people under the House rules 

constitutes a legitimate House of Representatives, but I agree with 

the Chairman’s opening remarks that I don’t that squares with the 

Constitution. We can console ourselves and suggest that, no, they 

can’t kill us all, but the pictures I have seen of Hiroshima and Nagasaki suggest otherwise. 

We can imagine that in time of crisis, universal sagacity is imposed or imbued upon those survivors, but my experience of crisis 

has been quite the contrary. Instead, I believe we must look 

squarely at this. We must provide a solution, and should that horrific day arise, following the announcement of our demise there 

must be clear-cut, unambiguous methods of replacing us so that 

the American people, and indeed the world can have confidence 

that their Government is up and running again and has a legitimate constitutional mechanism for doing so, and that the posts are 

filled by wise and decent people. 

I thank the Chairman for this opportunity and look forward to 

answering questions. 

[The prepared statement of Representative Baird appears as a 

submission for the record.] 

Senator CORNYN. Thank you very much, Congressman Baird. 

I have been handed a note that says that Senator Hatch will unfortunately not be able to attend the hearing in person due to unforeseen circumstances. He and others will have and do have written statements that will be made part of the record in this proceeding. 

As usual, and as our colleagues in the House know, there are 

Senators with other conflicting hearings. Indeed, I am missing a 

Senate Armed Services hearing by being here today. Of course, 

that is why we have the crack staff we do to help us monitor what 

is going on. Certainly, all those statements will be made part of the 

record. 

13

I wanted to just note that Congressmen Dreier had mentioned 

the distinguished group of his colleagues who support his proposed 

statutory change to address these concerns. 

I also note that, Congressman Baird, you have 86 cosponsors at 

last count for your House Joint Resolution 67. 

Maybe, Congressman Dreier, let me ask you to take a stab at 

this first. Given an apparent division in terms of the approach to 

address what we all agree is a problem, how are we going to bridge 

that gap between those who believe that a constitutional amendment is required and those that think that a statutory change will 

be sufficient? 

Representative DREIER. Well, Mr. Chairman, thank you for that. 

I will say that I think we have just done it here today because 

Brian in his very thoughtful testimony has made some of the most 

compelling arguments for my legislation imaginable. He began his 

presentation to you, Mr. Chairman, by saying that we have gone 

for 2 years without acting, and he is correct. As we look at what 

took place 2 years ago, there has been no action whatsoever. 

Now, the proposal for a constitutional amendment will, as you 

know very well, take, as constitutional amendments have in the 

past, on average, 7 years for ratification. So if we were to proceed 

with this structure—and I don’t think it would get through the 

House of Representatives and I don’t know if it would get through 

the Senate, but by the time we went through the process of passing 

it through both the House and the Senate, then sent it to the 

States for ratification, it clearly—and, again, the average is 7 

years—could take a very, very long period of time. 

So I would argue that that means that we should responsibly 

step forward with our legislative solution, which is what the Constitution calls for on this, and I think that would be an effective 

way to bridge it. 

The other point that he makes is a very interesting one. Brian 

talks about unelected leaders and those in the executive branch. 

Well, as you know, Mr. Chairman, if you look at, as I said in my 

remarks, the Constitution, we know that someone can become Vice 

President or President of the United States through appointment, 

as we saw with President Ford. 

Obviously, he was confirmed by the United States Senate when 

he was nominated to be Vice President of the United States, but 

he became President. And all of those other positions, by definition 

in the U.S. Constitution, are appointed; those Cabinet members are 

appointed, confirmed by the Senate, but appointed. So we have a 

structure of, for lack of a better term, many unelected people. Obviously, the President and Vice President are, by design of the Constitution, preferably elected by the people, but the others serve by 

appointment. 

Again, I get back to the fact of do we need more unelected people. 

Again, Brian criticized unelected people basically running the Government, but what we would have is, through the body that is by 

design from the Framers to be elected, we would have unelected 

people if we went the route of replacing it with our very distinguished former colleagues that he mentioned from his State, or if 

we had this whole idea of members behind us. 

14

So I think that we have come to a solution here, and I have always said, as our former Minority Leader, Bob Michel, said, the 

constitutional amendment should be the last resort. So why don’t 

we look for, as the Constitution has put into place, a legislative solution, which frankly we could move reasonably expeditiously, juxtaposed to the constitutional amendment, and let’s see how that 

works and if it can, in fact, be effective? 

So I think this hearing that you are presiding over, Mr. Chairman, has, in fact, gone a long way toward bridging that, as I think 

we could come together with what would be tantamount to a reasonably immediate solution under the standard strictures that 

exist for the process of lawmaking. 

Senator CORNYN. Congressman Baird, do you agree with Congressman Dreier that we have a budding consensus here in the 

House of Representatives? 

Representative BAIRD. I think we are a good ways away from it, 

and the reason is— 

Representative DREIER. I am always very optimistic, Mr. Chairman. 

Representative BAIRD. I appreciate the Chairman’s optimism. 

Representative DREIER. I look at the world through rose-colored 

glasses. 

Representative BAIRD. We are a ways away from it because what 

has been proposed will make us feel like we have solved the problem without solving the problem. 

My concern was not solely about whether or not the executive 

branch would be served by unelected people. What I was trying to 

point out is that those who adhere so profoundly—and I respect 

their adherence to it—to direct election of the House would, in that 

adherence, allow completely unelected people to run the entire 

country with no checks and balances, and I find that paradoxical. 

What they are doing essentially, I believe, and I find it deeply 

troubling, is disempowering the legislative branch. Effectively, 

what their solution—and I will say that in quotes—does is say that 

for a period of up to five weeks or more, Article I of the Constitution is hereby suspended. 

If the Framers had wanted us to statutorily be able to suspend 

Article I of the Constitution, I don’t know why they made it Article 

I and spent so much trouble working on it. But in the absence of 

a House for five weeks, I don’t think the executive has any choice, 

nor do they have any constraints should they choose not to exercise 

that but to act, to take this country into war, possibly nuclear war, 

to spend untold numbers of funds, to change fundamental laws, to 

impose marshal law, et cetera. 

What I am saying is checks and balances and separation of powers are equally important in the principles of the Constitution, perhaps more so than would be a 3- to 4-month deviation from direct 

election in the case of the House of Representatives. And I would 

underscore that we are still calling for prompt, direct election. 

What I am saying is do not have a period in which Article I of the 

Constitution no longer prevails. 

As for the ratification notion, I would underscore that when I 

first introduced the proposal that Governors appoint temporary replacements, this was in the context of immediate post-9/11 conVerDate 0ct 09 2002 11:20 Dec 15, 2004 Jkt 084328 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96926.TXT SJUD4 PsN: CMORC
15

cerns. We were about to go to war. At the time, we did not know 

where Pakistan was going to be on that. We did know Pakistan 

had nuclear weapons and we didn’t know what else Al Qaeda 

might have up their sleeves. I felt it was important to get some 

mechanism through this body to be available to the people should 

they have, unfortunately, the need to act on that. 

This notion that ratification takes 7 years, I think, is specious 

and a straw man, quite frankly. If this body could agree upon a 

constitutional amendment, then put it before the people in the very 

spirit of those who believe, as do I, that the people should have 

such power, the people through their States. Put it before the people. 

Does anyone doubt that if we had a viable mechanism of replacing the House, possibly the Senate—we already have the Senate, 

but if we had a viable mechanism of replacing the House in a time 

of crisis, that the legislators would not promptly convene and ratify 

this amendment so that we could get the Constitution functioning 

and the House of Representatives back up and running? 

It is in the best interest of the State legislatures and of the 

States to have a House of Representatives. We are the Representatives, and so too would be the temporary designees. Or do they prefer to have no representation in the House of Representatives, to 

abandon Article I for a period of five weeks? 

I believe we could ratify this, if the time came, very promptly. 

Quite frankly, even lacking that urgency of that situation, I believe 

most States, certainly the people in my State—when I talk to people at town meetings, they tell us you folks ought to fix this. 

What I would suggest is this: How do we get consensus on this? 

We are not going to get consensus, but let’s bring it before the bodies for debate. What troubles me the most is that 2 years after 9/

11, in the House of Representatives we have had a working group. 

The Continuity Commission has done their work. We have had one 

hearing in the Judiciary Committee, but this has not received attention at the public level by the full body. 

More than 218 members of the House of Representatives signed 

a letter 2 years ago, at the end of the last Congress, asking the 

Speaker of the House to bring this forward, to move this forward 

through a bipartisan committee. That has not been done. Two 

years is too long. Tomorrow, we could need this. 

Senator CORNYN. Well, hopefully, this hearing is the beginning 

of a re-starting of a discussion and hopefully will help expedite consideration of whatever solution is ultimately determined by the 

Congress and by the people. 

I know we could ask a lot of questions and there is going to be 

a lot of debate on this, as there well should be, but let me just ask 

one final question of Congressman Dreier particularly as regards to 

concerns that have been expressed by some, and I have shared 

some of those with you, about expedited elections and what that 

does to potentially disenfranchise some important elements of the 

electorate, for example, our military and others. That is a concern. 

Could you give me your thoughts on that, please? 

Representative DREIER. Mr. Chairman, we learned through the 

election of 2000 that democracy is a work in progress. I like to 

often tell the joke that on July 2 of 2000 I had the honor of co-leadVerDate 0ct 09 2002 11:20 Dec 15, 2004 Jkt 084328 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96926.TXT SJUD4 PsN: CMORC
16

ing an election observer team to Mexico with your fellow Texan and 

my good friend, our former Secretary of State, James Baker. We colead a 75-member election observer team. 

I serve on the board of the International Republican Institute 

and we regularly are out there as Americans observing elections all 

over the world, so a joke that on the night of July 2, Jim Baker 

and I stood in the hills above Puebla, Mexico, checking the validity 

of ballots, and 3 months later Jim Baker was doing the exact same 

thing in south Florida. So the point is a very clear one. Democracy 

is, in fact, a work in progress. 

I would argue that I am always concerned about disenfranchising 

voters, and we regularly hear cases of voters being disenfranchised. 

But I would argue that as we week to ensure that voters are not 

disenfranchised, we should not disenfranchise every single voter, 

because this proposal basically does that. 

My legislation calls for 21 days, and some argue that that is too 

short a period of time and again I have got these examples. It may 

not be exactly 21 days, but this notion of 5 weeks is, to me, not 

a correct one. I think it can be done within 21 days. 

You know, James Madison said the problems of democracy are 

solved with more democracy. It seems to me that as we look at 

that, I wouldn’t say that the problems created, as Brian pointed out 

in his last exchange with you, of unelected leaders are solved with 

more unelected leaders. I think that we need to get back to that 

core. 

So we are always going to seek to ensure that there are no 

disenfranchised voters, and we should seek to do everything we 

possibly can to see that the military and others are able to participate in these elections. But there is nothing to say that with that 

time frame that we have that having communities come together 

as they look at feeding and clothing their children in the wake of 

a horrible tragedy—that choosing their leaders is a very important 

part of that process. It is the basis on which the United States of 

America was founded and I think that we need to ensure that that 

stays in place, and we will seek to ensure that everyone does have 

that right to participate. 

It is nice to see my friend, Senator Leahy, here. 

Senator LEAHY. Good to see you. 

Representative DREIER. Good to see you. 

Representative BAIRD. Could I respond very briefly? 

Senator CORNYN. Congressman Baird, if you do have a brief response, and then I need to recognize the Ranking Member. 

Representative BAIRD. Yes, thank you. First of all, welcome, Senator Leahy, and thank you for your presence and your leadership 

on this. 

My only response would be this: We do not disagree there is a 

straw man being created as if we are favoring—those of us who 

favor appointment are somehow opposed to election. Not at all. 

The two areas of disagreement are these. One, do we have no 

Congress, no Article I of the Constitution during that interim? I believe that is a mistake. Two, should the elections take place in a 

time that allows a truly deliberative process and that is practically 

functional in a time of national crisis? Three months, I believe, is 

17

reasonable, but I think it is an error to try to push that so quickly 

that you disenfranchise people or lead to a distorted process. 

So we are not disagreeing that elected representatives are the 

ideal. Nobody is disagreeing with that in this body. What we are 

disagreeing with is the imposed time frame and we are disagreeing 

with whether or not you leave the House of Representatives nonexistent or to be run by a small handful of people during a time 

of grave national crisis. 

Senator CORNYN. Thank you very much. 

I am delighted that Senator Leahy, the Ranking Member of the 

Senate Judiciary Committee, could be here and present his opening 

statement and participate in the hearing. As he observed, I think 

one reason why we are a little light in terms of physical presence 

of members today is particularly because of a Senate Armed Services Committee hearing on the conflict in Iraq and the President’s 

recent proposal of Sunday night in terms of supplemental appropriations and the like. 

With that, let me turn the floor over to Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. I am delighted to see 

two friends from the other body over here. 

It is interesting that we are doing this, of course, almost on September 11. It is one of those things like presidential assassinations; 

we all know exactly where we were at that time. We also are well 

aware of the fact that the Capitol building that we all go to work 

in everyday was probably targeted for an attack, and we have to 

assume that it will continue to be as Al Qaeda plots in their hideouts in Afghanistan, Pakistan, and Saudi Arabia today. We know 

if they do as they have in the past, as they did with the World 

Trade towers, they will try to win this time around. 

For the Senate, it is fairly easy. Under the Constitution, in the 

event of a Senate vacancy, even in a national tragedy, a State governor—if authorized by the State legislative—can appoint a replacement to seve in the Senate until such time as the State laws 

or State constitution require an election. 

There is no similar provision for filling House vacancies, and for 

very real reasons. The Founders of this country wanted to make 

sure the House was as directly elected by the people and in as representative a capacity as possible. Elections are required to fill 

House vacancies, and depending upon the State, the elections can 

take some time. 

Unlike in the Senate where we can have appointed Senators, at 

least for a period of time, every person who has served as a member of the House was elected to that office by the people of his or 

her district. James Madison said the ‘‘definition of the right of suffrage is very justly regarded as a fundamental right of republican 

government. It was incumbent on the Convention, therefore, to define and establish this right in the Constitution. To have left it 

open for the occasional regulation of the Congress, would have been 

improper for the reason just mentioned.’’ So we do have a very 

heavy burden, obviously, to consider carefully whether to amend 

the Constitution. In fact, no matter what the amendment is, and 

18

certainly with something this fundamental, we should weigh it very 

carefully. 

Between 1945 and 1963, because of Cold War fears of nuclear attacks, there were 30 or more amendments proposed to allow the 

appointment of members of the House in cases of emergency and 

those proposals did not go anywhere. 

Some have said the House could change its rules so that emergency appointments could be admitted to a Committee of the 

whole. Frankly, I think that would not address the fundamental 

concern; they would still be unelected. The House has allowed delegates from the territories and the District of Columbia to vote in 

the Committee of the whole, but the delegates were still people who 

had been elected by those they represent. 

So the hearing raises some very interesting things. If we are 

going to do this by special election, how would it be funded and set 

up? California, which could have as many as 53 Representatives to 

replace, has a statute allowing for the replacement of Representatives in the event that a catastrophe causes a vacancy in either 25 

percent of the seats in the House or 25 percent of the seats representing California in the House. The statue allows 56 to 63 days 

for an election after a proclamation by the Governor. 

Tom Foley and Newt Gingrich, two former Speakers whom we all 

know and served with, suggested that Representatives appoint or 

designate a successor so that, when Representatives run for office, 

voters would know who the replacements would be. But regardless 

of the proposal, there are some basic questions to resolve, for example, how would we determine incapacity? 

I am not suggesting an answer, Mr. Chairman. I think it is extremely important that you are holding this hearing and I compliment you for doing it. Just as we did during the Cold War and 

we talked about the catastrophe of nuclear war, we plan for the 

more surgical catastrophe of an attack on the Capitol building. 

Frankly, if I had the proxies of everybody here in the room to 

write a solution other than staying where we are, I am not sure 

what I would do. So I think it is extremely important that you are 

having these hearings and I applaud you for doing that. 

I apologize for the voice; I seem to be having a bit of allergy reaction. But it is good to see David, and it is good to see you, Brian. 

Thank you. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator CORNYN. Thank you, Senator Leahy, for your comments 

and concerns. I am particularly appreciative of Chairman Hatch 

and you for authorizing us to have this hearing today at the full 

Committee because I do believe it warrants the attention of the full 

Judiciary Committee, and indeed of our full body. 

Representative DREIER. Mr. Chairman, if I could just report to 

Senator Leahy that the fill-in for Senator Hatch has done a phenomenal job in the absence of Senator Hatch and the other members of the Senate. 

Senator LEAHY. You notice how we have done it. John and I and 

Orrin have all tried to make sure that we show a certain amount 

of white-haired leadership. They, of course, show a lot more than 

19

I do, but they are in the majority and I am in the minority, so it 

is only right. 

Senator CORNYN. Well, gentlemen, thank you very much for your 

time and your thoughtful comments and testimony. They serve as 

an appropriate kick-off for the next panel that is going to be here, 

so thank you for being here. 

At this time, I would like to ask our next panel to come up and 

take their seats. We are fortunate to have with us a number of distinguished witnesses and before I recognize them, I would like to 

submit for the record a joint statement from two former Members 

of Congress who serve on the Continuity of Government Commission, former Senator Alan Simpson and former Representative 

Lynn Martin. 

Senator Simpson and Representative Martin both wanted to be 

here in person and their testimony supports that which was offered 

by Congressman Baird and the commission report. But we are 

grateful for their written testimony and their understandable absence. 

In addition, I would like to submit for the record, without objection, the testimony of Congressman Ron Paul, from my home State 

of Texas, who writes in opposition to the commission. As Congressman Dreier mentioned, he is a cosponsor of H.R. 2844, sponsored 

by Congressman Sensenbrenner. 

To ensure that we have an opportunity to hear from all members 

of the panel here, gentlemen, I am going to ask you to do something that is very difficult, and that is to hold your opening statements to 5 minutes. Since there are not going to be a lot of people 

asking questions, I assure you you will be able to get the gist of 

all of your testimony certainly offered at some point in response to 

questions if you can’t do it during the opening statements. Certainly, your written statements will all be submitted as part of the 

record in this hearing. 

We will also leave the record open until 5:00 p.m. on Monday, 

September 15, for members to submit additional documents and 

also to ask additional questions in writing. So you might be looking 

for that. 

First, we are pleased to be joined by Dr. Norman J. Ornstein. Dr. 

Ornstein is a distinguished scholar and expert on Congress and 

elections, and author of numerous articles and books on those subjects. He is a resident scholar at the American Enterprise Institute. 

In the fall of 2002, he helped launch the Continuity of Government 

Commission and serves as one of its two senior counselors today 

and, of course, has written extensively on the subject of this hearing. 

Next is Mr. Doug Lewis, Executive Director of The Election Center, a non-profit organization dedicated to promoting, preserving 

and improving democracy, headquartered in my home State, in the 

town I was born, Houston, Texas. Its members are government employees whose profession it is to serve in voter registration and 

elections administration, the very people who would have to conduct these elections. He has testified on election reform issues both 

in the other body as well as the United States Senate previously. 

We are also pleased to have Mr. Samuel F. Wright here to testify. He is Director of the Military Voting Rights Project at the NaVerDate 0ct 09 2002 11:20 Dec 15, 2004 Jkt 084328 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96926.TXT SJUD4 PsN: CMORC
20

tional Defense Committee and is an expert on the voting rights of 

military personnel assigned both within the United States and outside of this continent. 

Finally, we are pleased to have with us Mr. Thad Hall, a program officer with The Century Foundation. Mr. Hall has extensive 

experience in Federal and State politics, having worked for then 

Georgia Governor Zell Miller and as a policy analyst for the Southern Governors Association in Washington, D.C. He holds a Ph.D. 

in political science from the University of Georgia. 

With that, gentlemen, we would be pleased to hear first from Dr. 

Ornstein. 

STATEMENT OF NORMAN J. ORNSTEIN, SENIOR COUNSELOR, 

CONTINUITY OF GOVERNMENT COMMISSION, AND RESIDENT SCHOLAR, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, D.C. 

Mr. ORNSTEIN. Thank you very much, Mr. Chairman, and thank 

you for your leadership on this issue. Let me say it has been a 

pleasure working with your terrific staff, and the staff of the Committee as well, on these issues. 

Senator Leahy mentioned that, of course, we are approaching the 

second anniversary. I have been working on this issue now for 728 

days, starting on September 11. I was at Dulles Airport and got 

called off the jetway when the second plane hit the World Trade 

Center, retrieved my car, made my way back home and watched 

with horror through the rest of the day. 

That afternoon, it became clear to me, as it did to Brian Baird, 

that the greatest likelihood was that that fourth plane was headed 

for the Capitol dome, and I began to work through the consequences of if it had hit and then realized that the Framers had, 

in fact, left, as they couldn’t have done otherwise perhaps, a hole 

in the Constitution, a hole that remains a gaping one now almost 

2 years after that horrific wake-up call. 

I noticed the other day that Britain has begun to plan massive 

evacuations of London in the event of a terrorist attack, where they 

believe Westminster would be a major target as well. We know that 

the threat has not diminished. If anything, it is greater for something happening here. 

Unfortunately, we have had other kinds of wake-up calls, and the 

history of Congress is to dawdle over issues of succession. You 

think about the number of times when we had no Vice President 

in place, or times, as with President Wilson, when he was comatose 

for months and really no plan for dealing with incapacitation there. 

Yet, it took us until modern times and the 25th Amendment to 

even begin to deal with those issues. 

Now, as David Dreier mentioned, we did consider these questions 

during the Cold War. The Senate did three times pass constitutional amendments to provide for appointments in the House in the 

event of a catastrophe. The House did not take them up. Once, it 

came very close, but at a time when there were other constitutional 

amendments that took greater priority. 

But I do think that it is instructive to think about the difference 

between the Cold War era and now, and to recognize that there are 

two sharp and critical differences between then and now. One is 

21

the notice of an attack. Then, we had, of course, the Greenbriar set 

up, that secret bunker 200 miles from Washington, based on the 

assumption that if we had a confrontation with the Soviets, we 

would have notice of between 30 and 90 minutes once the missiles 

were launched from Siberia to evacuate the Capital. Now, we know 

the danger is a sudden attack occurring with no notice whatsoever. 

The second is the danger of incapacitation, and I want to stress 

this greatly and it is also something that Chairman Dreier brought 

up, but did not address, and noted that we had discussed it in the 

Continuity of Government Commission report. 

There is probably, given the nature of biological and chemical 

weapons available and given the experience we had, the frightening experience in the Senate, one that touched Senator Leahy directly, with anthrax in the aftermath of September 11, perhaps a 

greater danger of massive incapacitation than even of widespread 

death. 

If that highly weaponized anthrax had gotten into the ventilation 

system in the Senate, we might well have had 60 Senators or more 

in intensive care units with inhalation anthrax for weeks or 

months; no Senate, therefore no Congress, nobody to confirm appointments, including possibly to confirm a new Vice President or 

to deal with other very significant issues. 

Any suggestion that we can deal with this problem for the House 

with simply expedited elections ignores the problem of incapacitation. And, of course, it is, as you suggested, Mr. Chairman, in your 

opening statement, a problem that the Senate has to deal with as 

well. The 17th Amendment to the Constitution does not deal with 

incapacitation; it deals with death. We have had members of the 

Senate who have been incapacitated for years, unable to function. 

But it doesn’t matter much, frankly, for the institution as a 

whole when you have 1 Senator out of 96 or 1 out of 100 who isn’t 

able to function for a period of time. It would if there were more 

than 50. Any interpretation of the quorum, even the questionably 

expansive one of House parliamentarians since the Civil War that 

says that a quorum is a majority of those elected, sworn and living, 

doesn’t take into account what would happen if we had more than 

a majority of members incapacitated for a significant period of 

time. And the idea that you would simply force them to resign or 

expel them from office so that you could get a body functioning is 

not a very attractive one. 

Let me say just a few other comments along the way. Our commission, 16 members, co-chaired by Alan Simpson, a former member of this Committee and of this body, and Lloyd Cutler, former 

White House Counsel to two Presidents—former Speakers, former 

Cabinet members, many former Members of Congress, constitutional scholars, and others—not one of us like constitutional 

amendments. Not one of us started wanting a constitutional 

amendment. 

We went through exhaustively all the alternatives to see what 

could work first and came, I am afraid, inexorably to the conclusion, first, for incapacitation, but also in the case of widespread 

deaths, that to leave the country, as Brian Baird suggested, for 

weeks, if not months, without a functioning Congress, with what 

22

might be, if we are lucky, a benign form of marshal law, is simply 

unacceptable. 

The bill that Chairman Dreier and his colleagues have introduced, in effect, has a one-week, a seven-day period for elections, 

two weeks after a massive catastrophe, for parties to choose candidates, leaving out, of course, independents, any kind of independent candidates, and then one week once you have chosen the 

candidates to print ballots, secure polling places, get voting machines ready and certified, hire and train poll workers, and do the 

balloting. You leave out any voter registration, you leave out practically any absentee voting, you leave out large numbers of people, 

and it simply can’t be done. 

California may have the 63-day rule for emergencies. They are 

going well beyond the 60 days for this gubernatorial recall election, 

and it is instructive here. For one statewide election, not at a time 

of emergency, with 2 months from the time that the candidates are 

selected and the ballots can begin to be printed, election officials 

throughout California are saying that it is nowhere near enough 

time and they are afraid they are going to have another Florida on 

their hands. This can’t be done easily within a matter of weeks. 

Given what we know and what the working group co-chaired by 

Representatives Chris Cox and Martin Frost concluded after some 

exhaustive study, the number of vendors who print ballots is limited across the country. It is tough enough to hold special elections 

in the House within the matter of two or 3 months when there is 

one election going on, much less trying to do hundreds at the same 

time across the country. 

We may be able to expedite matters with vote-by-mail or Internet 

voting. I could spend hours going through the perils of vote-by 

mail, which has led in many cases, beyond, of course, the fact that 

it destroys the secret ballot and that zone of privacy around the 

polling place, to corruption, not in Oregon perhaps, but in many 

other places, including wide experience in Florida and Georgia, 

among others. We have had conferences on Internet voting showing 

that, as we have seen with these worms, there is no safety or privacy there either. There is no solution. 

Unfortunately, you come inexorably, as I believe this Committee 

will through its deliberations, to the conclusion that we need something else if we are going to have a functioning constitutional form 

of Government at the worst possible time. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Ornstein appears as a submission for the record.] 

Senator CORNYN. Thank you, Dr. Ornstein, for those comments. 

Mr. Lewis, we will hear your opening statement, please. 

STATEMENT OF R. DOUG LEWIS, EXECUTIVE DIRECTOR, THE 

ELECTION CENTER, HOUSTON, TEXAS 

Mr. LEWIS. Senator and distinguished guests, you know, I am reminded, too, that 2 years ago on September 11 I was flying up here 

to talk about election reform with Congress at that time, and now 

we are talking about something that is a little harder to contemplate, actually. 

23

The first assumption I think we have to make when we look at 

it as elections administrators is is the disaster contained only in 

Washington. All bets are off if it is not just Washington. At that 

point, we have got to go back and look at if it affects States, too. 

If it is the kind of disaster that hits not just D.C., but many of the 

States, then we are going to have to look at a different set of solutions. 

We don’t really have a quarrel with the tradition of House members being elected rather than being appointed. The problem is that 

that tradition also weighs, and must weigh equally with the tradition that we have elections, that the public knows who is running, 

that they understand the issues, that they have the choices and 

know how to make those choices and who is actually going to be 

on the ballot. 

The question, I guess, we have is do we suspend democratic processes in order to get democracy. That seems to be a little bit of an 

anomaly in the way we think of things if we can say that we can 

speed this process up so that we can claim that we had an election, 

when, in fact, that may not represent what we define as an election 

in America. 

Certainly, the genius of the American political system is that the 

voters have fundamental faith in the process itself. If they do not 

have faith in that process, that the process was somehow rigged in 

such a way that it accelerated things to where there was no reasonable election of candidates, then can they believe in the government that results from it? We think probably not. 

Certainly, in order to have a general election, you have to have 

some way to have the primary nomination of the candidates. The 

device that has been proposed is 14 days and let the parties sit 

down and nominate those, and then discard all those other people 

who might have wanted to run or might have been able to run, or 

should have maybe been the persons to run. It certainly eliminates 

all the independents; it eliminates all the minor parties because 

you are not going to have enough process time in order to determine who those candidates are. That is a part of the American 

democratic process. 

Certainly, the threshold that Congress needs to look at—is that 

25 members, 50 members, 100 members, a quorum? What does it 

constitute before this National election and national emergency 

kicks in? 

The lessons that we learned in New York City alone from 9/11 

when an election was scheduled on that day in order for us to continue with an election in a disaster—we need to then assess what 

is available to us. How do we go back and rebuild the process and 

do the process so that folks can actually come to the polls? Certainly, those lessons ought not to be wasted on us. 

Presumably, Congress is going to say that a national emergency 

needs to take precedence and that national interests are superior 

to State interests in this regard. But if that is the case, then Federal law is going to have to definitely suspend a whole lot of laws 

on State books in order to conduct an emergency election. 

Concurrently, if you are going to suspend all those laws and all 

those processes, you are also going to have to train poll workers to 

24

a whole new set of rules and regulations so that they don’t disenfranchise voters when they show up. 

It appears from the surveys that we have done now with elections administrators around the country that most feel like we can 

conduct an election in as few as 45 days. But we would prefer to 

have more than that. We would prefer to get to the point that we 

have—any extra day beyond that helps us run an election that has 

more credibility and more ability for folks to participate. 

One of the House bills says that if such an emergency occurs 

within 51 days of a regular election, then you go ahead with a regular election. Well, if 51 days is the basis, then 51 days probably 

ought to be the basis, instead of saying that we want to do it in 

21. 

Now, the question is can we do an election in 21 days. Elections 

administrators are pretty good folks. They can do pretty much the 

impossible, but the point is is that truly an election that represents 

America? 

If you look at the things that we have to have—candidate filing, 

new voter registration considerations, preparation for absentee ballots and what are you going to do about all those who are military 

and overseas—are you going to suspend their rights? Are you going 

to suspend the rights of the disabled in the election because you 

don’t have enough time to mail the ballots and get them back, and 

the transit time there? 

If we had more time on the front end, we probably wouldn’t have 

to count the ballots after election. Maybe one of the things that 

Congress needs to do in order to assure enough poll workers in a 

situation like this is to suspend all the labor laws that would keep 

us from using and pressing into service all of the other government 

employees at city and county levels so that we could do this. 

Certainly, we would want to look at the ability to say can we do 

it? Yes, we can do it. We could hold an election in 21 days, but it 

would not be what America has grown to know and understand as 

an election and it would suspend the rights of many, many folks 

in the process. 

Lastly, let me wrap up with saying Congress has to understand 

that on election day you haven’t got the final totals. We are going 

to have to go through a canvassing period where we process those 

absentee ballots on the back end, unless those have been suspended. We are also going to have to understand and do the counts 

and qualify provisional ballots, or do we suspend those, also? 

That back-end process is where it takes us a lot of time. In California, it takes them 28 days to get through all the ballots that 

come in on provisional voting. That is not 28 days where they can 

just compress that by magically waving a wand and saying they 

don’t need all that time. It takes that much time to get it done. So 

these are things that Congress needs to look at when it decides on 

this issue. 

Thank you, sir. 

[The prepared statement of Mr. Lewis appears as a submission 

for the record.] 

Senator CORNYN. Thank you very much, Mr. Lewis. 

Mr. Wright, I know you are prepared to talk about military voting rights. Certainly, for me, that is one of the biggest concerns I 

25

have about what impact expedited elections would have on the 

rights of those people who are representing this Nation on battle 

fields across the planet. We would be glad to hear your opening 

statement. 

STATEMENT OF SAMUEL F. WRIGHT, DIRECTOR, MILITARY 

VOTING RIGHTS PROJECT, NATIONAL DEFENSE COMMITTEE, ARLINGTON, VIRGINIA 

Mr. WRIGHT. Well, thank you. I would just like to bring to your 

attention—I am sure you aware of it—the Uniformed and Overseas 

Citizens Absentee Voting Act of 1986. It is in Section 1973ff of Title 

42. It explicitly applies to special elections, as well as primary, general, and runoff elections for Federal offices. 

Representative Dreier mentioned a California law providing for 

an expedited 63-day rule if there are more than a certain number 

of vacancies in the U.S. House of Representatives either overall or 

among the California delegation specifically. I think that law, 

frankly, is inconsistent with the Uniformed and Overseas Citizens 

Absentee Voting Act. Of course, Representative Dreier—in his bill, 

he could and I think he would have to provide for the suspension 

of UOCAVA, the Uniformed and Overseas Citizens Absentee Voting 

Act. 

Military voting and overseas voting is difficult enough in biennial 

general elections. I presented in my written testimony a response 

to a questionnaire that I received from Hon. Matt Blunt, Secretary 

of State of Missouri. I asked each of the 51 chief State election officials to complete a questionnaire that I sent out in May of 2002. 

Secretary Blunt is the only one that did. I did get some responses 

from counties in Florida, but the Secretary of State there left it up 

to the counties and 14 of the 67 counties responded. 

Secretary Blunt actually distributed my questionnaire—this was 

for the 2002 general election—to the 116 local election officials in 

Missouri and he obtained responses from 105 of them. The City of 

St. Louis was one of the hold-outs, unfortunately. 

Among those 105 counties in Missouri, in the 2002 general election, for military and overseas voters, defined as people who used 

the Federal postcard application to apply for their ballots, the disenfranchisement rate was 41 percent. In other words, if you add up 

the applications that were rejected because they came in late or because they were somehow procedurally insufficient, and then you 

add to that the absentee ballots that came back late, the absentee 

ballots that came back on time but were rejected for procedural deficiencies, and another 350 absentee ballots from Federal postcard 

application voters, 350 ballots that never came back at all even as 

of mid-2003, then you come up to 41 percent of the applicants that 

did not, in fact, cast ballots that were counted in the 2002 general 

election. 

In a special election, it is even more difficult, and I think there 

is no way in 21 days, or even 21 weeks, you could have an election 

in which people overseas could have a realistic opportunity to vote. 

I recognize the importance of an elected House of Representatives, but I favor your approach or what is being considered here 

of having interim appointments, to be followed by special elections 

as soon as reasonably practicable. 

26

[The prepared statement of Mr. Wright appears as a submission 

for the record.] 

Senator CORNYN. Thank you, sir. 

Mr. Hall, we would be pleased to hear from you. 

STATEMENT OF THAD HALL, PROGRAM OFFICER, THE 

CENTURY FOUNDATION, WASHINGTON, D.C. 

Mr. HALL. Thank you, Mr. Chairman. At this hearing, I want to 

focus my comments specifically on the issues associated with holding special elections on a short time frame, and here I think there 

are three key points that I want to make. 

First, at present, State laws are not well designed to hold special 

elections on a very short time frame. Second, Congress does have 

the power to regulate elections in a way where special elections 

could be conducted in a relatively quick and efficient manner. And, 

third, there are technological changes in the election field that will 

likely make special elections easier to hold in the future, especially 

for the UOCAVA population. 

Regardless of whether or not one supports the constitutional 

amendment or not, it seems very likely that we will be holding special elections for House members in the case of a disaster for some 

time, given the debate over whether or not there should be an 

amendment. So the fundamental question is how can Congress 

make the special election process work better. 

Answering this, I think, requires rethinking the way elections 

are currently conducted in the States because State laws that govern elections are not designed for speed; they are designed for other 

reasons. The California example that Dr. Ornstein mentioned earlier is an interesting case in point. The California recall provides 

us some lessons of how State laws can impact the speed and ability 

of election officials to quickly hold a special election. 

I was fortunate when I worked for the National Commission on 

Federal Election Reform to spend a week in Los Angeles to watch 

them run their mayoral election, and it is quite an experience to 

see a jurisdiction of that size run an election. 

To give you an example of how large Los Angeles County is, they 

have 5,000 precincts if they run a full election and don’t consolidate 

their precincts. If they do consolidate, they have about 2,000 precincts. They have 25,000 poll workers. To put that in context, there 

are about 5,000 Starbucks in America. There are not 2,000 WalMarts worldwide, and the poll workers outnumber the LAPD 3 to 

1 on election day. So it gives you a sense of what is involved in putting together an election. 

In L.A., they also have 135 candidates, which is creating a huge 

problem. There is a very low threshold for getting on the ballot. 

There are numerous lawsuits going on out there, and so it does 

have kind of circus atmosphere, in part because the people who run 

the elections out there have very little discretion on how they run 

the election. They have to run it at poll sites on election day. 

They could, however, use a different model if they were freed up 

to do so. For instance, if you look to the north of California, in Oregon they run their elections using vote-by-mail, and they have 

done so since the people of Oregon passed a State constitutional 

amendment in 1996 to allow them to do this. 

27

In Oregon, all registered voters are automatically sent a ballot 

between 14 and 18 days before an election. They then complete the 

ballot. They have to turn the ballot in either by sending it in by 

mail or dropping it off and it has to be received by election day. 

Then the votes can be counted at that point. 

The benefit of this system in a crisis situation might be that you 

would not have to gear up poll sites, find poll workers, and do 

these things. You would be able to immediately enfranchise all the 

registered voters by sending them a ballot. 

The effectiveness of vote-by-mail has been recently recognized 

internationally. The United Kingdom has an electoral commission 

that is similar to the soon to be created Election Administration 

Commission. They have been conducting experiments in local elections using vote-by-mail over the past several election cycles and 

they have recently recommended that all local elections in the 

United Kingdom be held using vote-by-mail. 

However, using this system would not be without its drawbacks. 

One of the issues would be that people who have disabilities might 

not be able to vote using vote-by-mail. But localities can often operate poll sites using early voting, which you, I am sure, are familiar 

with, as it is used so much in Texas, where you can put up touchscreen voting systems that people can use. 

In fact, Los Angeles County, which traditionally has used punch 

cards, has been using an early voting DRE system since 2000 in 

their disabled community and their language-minority community. 

They have to serve seven different languages in Los Angeles County under the Voting Rights Act and have found this to be very beneficial. 

I think that Congress could do a couple of things to make the 

process work better. First, they could require States to develop a 

legally-binding mechanism for how they would hold special elections in the case of a disaster. States would basically determine 

what laws would be in place and what procedures they would have 

to do to make an election work in that situation. Second, Congress 

can obviously pass a law to accomplish the same goal. 

I also think it is very important that in a disaster situation, if 

we are going to do these elections in the short term, Congress and 

the Federal Government should be willing to pay for some of the 

costs associated with these elections. 

Some of the problems associated with these elections could be 

overcome if Congress did this. For example, with the issues of ballots and things like that, Congress could go ahead, or the Federal 

Government could put in place contracts with people so we had ballot paper in place, we had printers in place, we had all the things 

you would need to make an election go off quickly. 

Finally, I would just like to point out that technological changes 

are likely to make enfranchising the UOCAVA population in the future much easier. In 2004, the Federal voting assistance program 

will be pilot-testing an Internet voting system that will be used in 

several States, and that will provide an opportunity for these people to vote using a quicker, much more efficient and effective technology, and to register using that technology. I am actually part of 

the evaluation team that is evaluating that process. 

28

[The prepared statement of Mr. Hall appears as a submission for 

the record.] 

Senator CORNYN. Thank you very much, Mr. Hall. 

At this time, I want to offer, without objection, into the record 

the written statements of Doug Chapin, who is Director of 

Electionline.org; Curtis Gans, Director of the Committee for the 

Study of the American Electorate; and Phyllis Schlafly, President 

of the Eagle Forum and Chairman of the Coalition to Preserve an 

Elected Congress, who writes in opposition to the commission report. Mr. Chapin and Mr. Gans express concerns with an expedited 

election process. 

I want to make just a brief statement in appreciation to Dr. 

Ornstein, and really to the commission that was a joint project of 

the American Enterprise Institute and the Brookings Institution—

the Continuity of Government Commission for the outstanding 

work that was done on this subject. I think, to me, that stands out 

as a great example of the kind of scholarship and expertise that 

can be offered to Government to help us make better decisions, and 

I appreciate that very much. 

Starting maybe with Dr. Ornstein, let me just ask you about 

Congress’ traditional reluctance to pass constitutional amendments. I was reminded that in one extreme instance, a constitutional amendment was submitted to the States in 1789, but took 

203 years to ratify. 

If we are talking about trying to get amendments to the Constitution ratified so we can deal with what I think we can all agree 

is, if not urgent, a compelling need for Congress to act, can you tell 

me sort of what your thoughts are about how we can get it done 

more quickly and in a way that would address the concerns that 

you talked about? 

Mr. ORNSTEIN. Certainly, Mr. Chairman. Thank you for your 

kind comments, and let me acknowledge my fellow senior counselor, Tom Mann, and the director of our commission, John Fortier, 

who are there in the audience, along with Kim Spears, who has 

worked on this issue with us. 

Chairman Dreier, of course, misspoke when he said that it takes 

an average of 7 years for constitutional amendments to be ratified. 

The modern practice has been to put a 7-year limit once the 

amendments go through Congress and then go to the States. What 

we had recommended was a much shorter limit for the States. 

But in this case, the critical issue is getting an amendment 

through the Congress while there is a Congress. Once an amendment goes to the States, I am not very worried, frankly, about ratification time because once you have got an amendment through the 

Congress, assuming, by the way, that we have implementing legislation, as well, in the form of a short amendment that is parallel, 

let me note, to the constitutional provision for presidential succession—presidential succession in the Constitution basically creates 

a presidency and a vice-presidency, but then delegates to Congress 

the responsibility through implementing legislation to select others, 

the subject of the joint hearing, of course, that you will be holding 

with the Rules Committee in the Senate next week. 

If you did it in that fashion, basically just giving it to Congress, 

you would need some kind of implementing legislation. But once 

29

you are through the body, then States, as Representative Baird 

said, beyond any question, if we had a catastrophe, would act swiftly. The difficulty comes if we don’t have a plan in place and then 

an attack occurs. 

Now, unfortunately, the history of the country in these areas is 

that we wait until we go from theoretical to real, and in some instances, as we had with President Wilson, from real to something 

even more real. It takes something that really shakes the country 

up, like the assassination of President Kennedy, to overcome the 

natural inertia in the process, normally a very commendable thing 

because constitutional amendments shouldn’t be done lightly, to get 

something done. 

When I am asked about this issue, people say, well, are they 

going to act and will they get this amendment done? And my answer is yes. The question is does it come before or after we have 

to pick up the pieces from an attack. So ratification time in this 

case, I think, is not the critical question. It is getting the Congress 

moving so that if something happens, we then can see the States 

respond quickly. 

I also believe, by the way, that most constitutional amendments, 

once they get through Congress, unless they are highly controversial issues like the equal rights amendment for women, once Congress has managed to muster the super-majorities in both Houses 

to make something happen, the States recognize the reason for 

doing so and move much more quickly. 

Senator CORNYN. I know no one likes to think about this, but 

would you just speak briefly to what the possible scenarios might 

be, the parade of horribles, I guess, in the event Congress fails to 

act on this proposed constitutional amendment if, in fact, a majority of the Senate is incapacitated or a majority of the House is incapacitated or killed and either body is unable to establish a quorum? 

Can you give us an idea of some of the scenarios that you think 

are possible? 

Mr. ORNSTEIN. Sure. You can unfortunately find a number of 

worst-case scenarios that used to be the stuff of Tom Clancy novels, 

literally, but now they are tangible possibilities. 

Probably the worst case is something happening at an inaugural. 

At an inaugural, we have the crisis of succession with all three 

branches. You have got, of course, the incoming President and Vice 

President, the outgoing President and Vice President involved; the 

outgoing and incoming Cabinet. The outgoing Cabinet is supposed 

to submit letters of resignation as of noon on January 20. Presumably, most of them have, perhaps not all. 

Even though confirmation hearings have been held in many instances—in recent times, we have done this to try and get a Government up and running—before the 20th, you still have to have 

the Senate only after noon on January 20 confirm new Cabinet 

members. 

You have the Supreme Court there, the Congressional leadership, and most of the Members of Congress. And if you did have 

something like a suitcase nuclear bomb, you could end up with 

questions about whether there was anybody in charge and maybe 

people popping up saying, well, I will be the President. And you 

might then have literally a handful of members of the House who 

30

happen to survive announcing that they would constitute a 

quorum, choose a Speaker, who would then become under the Presidential Succession Act President for the next 4 years. This is not 

fanciful, I am afraid. It is real. 

Beyond that, of course, even with expedited special elections, 

even if we did move within a brief period of time—and again remember that the proposal on the table, which is 14 days to choose 

candidates, then 7 days to hold an election—you are still going to 

need at least a week or 10 days or much more time, as Mr. Lewis 

has reminded us, afterwards to go through the ballots and then 

certify the candidates. 

Think about what was done in the three of four weeks in the immediate aftermath of September 11, all the things that were done. 

Even at minimum, we are going to have that problem. Then, of 

course, you have those problems of incapacitation where you would 

be paralyzed with simply no Congress that could act under any circumstances, given the definition of a quorum. 

What we are talking about now is the possibility of quarantine 

because of smallpox, an anthrax or sarin gas attack, another kind 

of biological attack. We have known in the past that what we 

thought was the worst case in the Cold War and post-Cold War era 

was the State of the Union. And, of course, we have followed the 

practice over the last couple of decades of having a member of the 

Cabinet absented from that State of the Union because this was 

the one occasion when all the members in the Cabinet and the 

President and Vice President were gathered together in that one 

building. 

But when you consider the range of weapons of mass destruction 

available now over the Internet or in a fairly easy fashion, the accessibility of them to Al Qaeda and to others, including with cooperation by governments, and that the pace of technology there is 

only going to increase and the availability of these destructive 

things increase, we are no longer simply confined to a question of 

what happens in one building. It can be a question of what happens across the entire city. 

A suitcase nuclear bomb available now with fairly ready technology literally the size of a suitcase can wipe out a 6- to 8-squareblock area, basically much of official Washington, if it were in the 

appropriate place. And we know that some of these biological attacks can move very swiftly through the population. 

So the bottom line, Mr. Chairman, is that when you take any of 

those scenarios and then you begin to work through what it could 

mean, with the House having a Speaker who is third in the line 

of succession, with the Senate having the important role, among 

other things, of confirming Vice Presidents and members of the 

Court and other such officials, with both bodies being needed for 

lawmaking, the easy ability now, unfortunately, in the age of terrorism to block those actions from taking place for weeks or months 

cries out for a response. 

Senator CORNYN. Mr. Lewis, I know from observation that when 

Congress or perhaps the State legislature mandates certain election law changes, there is a very real impact on the people who actually have to administer those elections. We have heard some suggestions even here today about the use of technology, Internet votVerDate 0ct 09 2002 11:20 Dec 15, 2004 Jkt 084328 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\96926.TXT SJUD4 PsN: CMORC
31

ing, vote-by-mail, things like that that would perhaps expedite special elections. 

Could you speak for a moment on what sort of impact that would 

have on those who actually administer the elections in terms of 

being able to successfully accomplish those elections? 

Mr. LEWIS. Well, the truth of the matter is even if you look at 

ordering ballot stock, ballot stock is not a piece of paper. It is a 

stock that we use to run through equipment. If we are going to 

order up enough to have what essentially becomes a national election, you are going to have to order that by train car load, you 

know, and it doesn’t come quickly. We don’t keep it in stock, we 

don’t keep it on hand. 

And then as Norman has correctly pointed out, you have only got 

a handful of ballot printers in America. And ballot printing is not 

one of those things where you just take it down to any printer or 

down to a Qwik Copy and have them run you a copy of it. If it is 

going to be counted by machines, it is going to have to meet timing 

marks. 

Or if we are going to use electronic equipment, you have got to 

have that programmed. The electronic equipment at least helps us 

eliminate all the possibilities of having to wait around on card 

stock and ballot stock, but then you are down to how programs all 

of that. There are a limited number of technical people available 

to us to help us get that set up in a hurry. 

So when you look at it, 7 days, as proposed—I guess I am one 

of those loopy folks that thinks it is going to take a little longer. 

The truth of the matter is if you work with this enough, you find 

out that this does not happen overnight. We have done it so well 

for so long that everyone takes it for granted without understanding what goes into it. So it does take time to establish all of 

this. 

If we ever find out a way to make the Internet a viable delivery 

service of votes with safety and security, we might be able to make 

that work. But the truth of the matter is we know it is not yet and 

so we haven’t been able to figure that out, at least for general public use. 

As we saw with what happened with the Northeast, if somehow 

terrorists were able to knock out the Nation’s electricity, a whole 

lot of what we are planning and thinking of doesn’t work anyway. 

At that point, we are all in deep trouble. 

So there is no easy answer here, and certainly trying to force an 

election that basically is going to be held in 7 days from the date 

that you know the candidates does not seem to make sense. At that 

point, we have got to look at other options, and what those other 

options are I don’t know. That is up to you all as Congress people 

to decide. But, certainly, if we are going to do an election, the election ought to have some integrity to it in terms of the way that the 

voters see it and perceive it as an election. 

Senator CORNYN. Mr. Wright, if we are going to head in the way 

of a statutory solution, as proposed by some, including Congressmen Dreier, what do you see as sort of the minimum requirements 

necessary to preserve the rights of our military voters? 

Mr. WRIGHT. I don’t think it can be done. I think they would 

have to suspend UOCAVA, the Uniformed and Overseas Citizens 

32

Absentee Voting Act, either suspend it explicitly, or more likely, as 

sometimes happens in special elections anyway, just sort of ignore 

it. 

Senator CORNYN. Well, obviously, that is not a desirable result 

under any set of circumstances. 

Mr. WRIGHT. Right. 

Senator CORNYN. But your testimony is that you really don’t see 

preservation of military voting rights and special elections as compatible? 

Mr. WRIGHT. Certainly not a snap special election. I think you 

need 6 months. 

Senator CORNYN. Well, I know in Texas we have four statutory 

election dates that offer some sense of predictability, some opportunity for preparation if there is a vacancy and a special election 

ordered by the Governor. But, of course, we are not talking about 

that. We are talking about something that would start from zero 

and have to gear up very quickly. 

Mr. WRIGHT. But even with that, the service member or anyone 

overseas or anyone that needs to vote by absentee ballot for whatever reason cannot even apply for an absentee ballot until he or 

she knows there is going to be an election. 

Now, we know there is going to be a presidential election a year 

from this November. So if you wait too long to apply for your ballot, 

the ‘‘own dumb fault rule’’ comes into play. My concern is about 

those people who apply early but still don’t get their ballots on 

time. But in a special election, there is no way to apply early because you don’t know your Congressman is going to die. 

Senator CORNYN. Mr. Lewis, would you like to comment on that? 

Mr. LEWIS. Yes. Some of that has been helped by the Help America Vote Act in the sense that they will then become registered for 

the year, and so already we will know that they are military and 

overseas. We can get to some of that; we can answer some of that. 

If we have a minimum of 45 days, with then a period afterwards 

in which we can still receive those ballots, we can indeed probably, 

with all the transit time necessary, get the ballots out and get 

them back. But it is going to be humping it, and it won’t get it for 

all of them. 

Mr. WRIGHT. The usual remedy for a UOCAVA violation is a 

court order extending the deadline for the receipt of mailed-in ballot from outside the United States. It was a 1982 court order in 

Florida that is still in effect that provided for the ballots to be 

counted up to ten days after the election in Florida for Federal offices, President, Senate, and House. 

But that would go against the whole idea of what we are talking 

about here. You know, the whole idea is not only do we need to 

have the election, but we need to figure out who is the winner and 

send that person here to Washington to enable the House of Representatives to have a quorum and to enact the Nation’s business. 

Senator CORNYN. I guess we also have to be concerned about the 

electorate knowing who the candidates are before they actually cast 

a vote and the challenges associated with getting that information 

to those voters. Perhaps there ought to be some provision made for 

at least disseminating to those voters information about the duly 

qualified candidates as part of that process. 

33

Dr. Ornstein? 

Mr. ORNSTEIN. Just one point. If you take what Mr. Lewis has 

said, 45 days being something where there is a consensus of election officials that if they were absolutely pushed maybe they could 

do it, although even with that we need caveats, then consider that 

it will take ten days or so after that to go through and certify ballots at an absolute minimum, then you are talking about having 

under the worst case an entirely new body come to Washington, 

probably including a vast majority of people with little experience 

in politics or government, very few former members, for example, 

and you need some time to organize the body. 

Even now, when the House comes back with usually 90 percent 

of its members continuing, they take several days to enact rules, 

to organize, to select people for committees. Assume under the best 

of circumstances two or three weeks before you could actually be 

up and functioning, with most people not even knowing parliamentary procedures. 

So even with that, we are talking 3 months or more before you 

could actually have a fully functioning Congress to begin to do 

things like declare war or authorize the use of military force or 

make appropriations. So under the best of circumstances, if we rely 

on elections, we are still talking about a gaping hole in terms of 

the amount of time where you are operating under marshal law. 

Senator CORNYN. Mr. Hall, would you like to comment on some 

of the other testimony by some of your co-panelists? 

Mr. HALL. I think the one thing I would like to point out is I 

think that Mr. Lewis is absolutely correct that you do have to take 

into account that there is a minimum period that you have to have 

to just prepare everything and then to count the votes at the end. 

It may not be 45 days. You may be able to shrink that somewhat, 

but the more you shrink into it, the more you impact the UOCAVA 

population. 

I think in some States, 30 days is generally the minimum that 

they allow. You have to send out UOCAVA ballots by that point, 

and so if you do cut into that time, if there is not another procedure for these people to vote using the Internet or some other 

mechanism, you start to impact their ability to participate in the 

process. 

Senator CORNYN. Well, of course, we also know there are other 

requirements that don’t cover all States, but do cover some States 

with regard to, for example, the Voting Rights Act and pre-clearance requirements to any changes made that would have the potential of diluting or disenfranchising minority voters which present 

additional challenges. 

Mr. Lewis? 

Mr. LEWIS. One of the things that Congress may want to think 

about is looking at some methodology that would send experienced 

legislators up here and some way of finding a way to include those 

State legislators to get them up here so that they hit the ground 

running rather than people, as Dr. Ornstein correctly points out, 

who don’t understand the legislative process, who don’t understand 

rules and procedure or how a bill gets passed or any of that other 

stuff. So it may be that in your thinking you may want to look at 

34

how do you get experienced hands up here who can hit the ground 

running. 

Mr. WRIGHT. Something that occurred to me in listening to the 

other testimony about the incapacitation issue is maybe if Senators 

and Representatives would execute a power of attorney to someone 

outside the D.C. metropolitan area. Maybe your campaign Chairman or some trusted person would have the power of attorney to 

resign if you are in a hospital and comatose. 

We have had circumstances where there were vacancies in the 

House for extended periods of time because someone has had a 

heart attack and doesn’t have the capacity to sign a resignation letter. So it would serve that purpose as well. But certainly for the 

emergency circumstance we are talking about, or if someone is 

missing—you know, we are digging up the rubble of the Capitol 

and maybe someone is still alive under that rubble, but more likely 

they are not, but to resign so whatever the process is can get started. 

Mr. ORNSTEIN. Let me say that the difficulty with that is you 

would end up perhaps having a tragedy, taking people who might 

be missing and then found again, or who might be incapacitated for 

three or four or 6 months, and basically removing them from office 

forever or for a very long period of time, something which is not 

desirable. 

You can deal with incapacitation, I think, in a very reasonable 

fashion through this amendment process, where basically when it 

is clear that people are incapacitated—and it can be done through 

some power of attorney fashion or by other officials—there are appointments to replace them until those individuals themselves simply declare that they are ready to resume service. Then nobody is 

unfortunately destroyed inadvertently or the entire election process 

destroyed by this. 

Senator CORNYN. Well, gentlemen, let me say how grateful I am 

to each of you, and I know I speak on behalf of the Chairman of 

the Committee and the Ranking Members and all members, that 

we appreciate your testimony. 

This is the beginning of our deliberations in this body on this 

subject, not the end, and I hope that this hearing will generate a 

lot of interest in the legislative branch to deal with this subject in 

a responsible and comprehensive way. 

This is, as I believe, Dr. Ornstein, you said, no longer the stuff 

of a Tom Clancy novel. This is very real, and I believe that 2 years 

is too long for us to actually be holding these hearings, but here 

we are now. And so now we can control maybe not our past, but 

our future in terms of the way we constructively deal with us and 

each of you has made a great contribution to that effort. 

Before we adjourn, I would like to again thank Chairman Hatch 

and Senator Leahy. I will again say that we will leave the record 

open until 5:00 p.m. next Monday, September 15, for members to 

submit additional documentation for the record, and also to submit 

any additional questions of the witnesses. So you might look for 

those.

35

With that, this hearing of the Senate Judiciary Committee is adjourned. Thank you. 

[Whereupon, at 12:00 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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