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95–383 2004

CONTINUITY OF CONGRESS: AN EXAMINATION 

OF THE EXISTING QUORUM REQUIREMENT AND 

THE MASS INCAPACITATION OF MEMBERS 

HEARING 

BEFORE THE

COMMITTEE ON RULES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED EIGHTH CONGRESS 

SECOND SESSION 

APRIL 29, 2004 

Printed for the use of the Committee on Rules 

( 

(II) 

COMMITTEE ON RULES 

DAVID DREIER, California, Chairman 

PORTER GOSS, Florida, Vice Chairman 

JOHN LINDER, Georgia 

DEBORAH PRYCE, Ohio 

LINCOLN DIAZ-BALART, Florida 

DOC HASTINGS, Washington 

SUE MYRICK, North Carolina 

PETE SESSIONS, Texas 

TOM REYNOLDS, New York 

MARTIN FROST, Texas, 

Ranking Minority Member 

LOUISE MCINTOSH SLAUGHTER, New 

York 

JAMES P. MCGOVERN, Massachusetts 

ALCEE HASTINGS, Florida 

(III)

WITNESSES

Panel 1 

The Honorable Charles W. Johnson, Parliamentarian of the 

House, United States House of Representatives. 

Mr. John Sullivan, Deputy Parliamentarian of the House, United 

States House of Representatives. 

Mr. Tom Duncan, Deputy Parliamentarian of the House, United 

States House of Representatives. 

Panel 2 

The Honorable Walter Dellinger, Douglas B. Maggs Professor of 

Law, Duke University, and Former Acting Solicitor General of the 

United States. 

Panel 3 

Dr. John Eisold, M.D., The Attending Physician to Congress & 

Rear Admiral, Medical Corps, United States Navy. 

OVERVIEW

On April 1, 2004, Committee on Rules Chairman David Dreier 

and Ranking Member Martin Frost announced a bipartisan inquiry 

into issues associated with the incapacitation of Members. As 

Chairman Dreier said, ‘‘It’s possible that a terrorist attack could result in not just deaths, but incapacitation as well. How does this 

affect our quorum? What is the standard for incapacitation? Can 

adjustments to deal with these possibilities be made within our 

own rules?’’ Ranking Member Frost concurred in the need for a full 

inquiry when he said, ‘‘The issues surrounding the incapacitation 

of large numbers of Members in the House of Representatives 

present some of the thorniest questions the Congress must address. 

This is an issue never contemplated by the Framers, but it is an 

issue that is very relevant to the House today.’’ The Committee on 

Rules held an original jurisdiction hearing on these issues on April 

29, 2004, at 10:00 a.m. in Room H–313 of the Capitol. 

This hearing continues the in-depth review by the Committee on 

Rules of how to ensure the functioning of our representative government in the event of a catastrophe. 

The U.S. Constitution requires that each body of the Congress 

have a quorum in order to conduct most business. Under House 

rules and House precedents, a quorum is defined as a majority of 

Members who are ‘‘chosen, sworn, and living.’’ With a full membership of 435 Members in the House, a quorum is 218. Current 

House rules allow the Speaker of the House to adjust the quorum 

downward if Members die or resign while in office. However, if a 

terrorist attack or other form of catastrophe left a large number of 

Members incapacitated, the number required for a forum could not 

IV

be lowered because the Members would still be alive. If a sufficiently large number of Members were incapacitated, the House 

could be unable to muster a quorum and thus unable to conduct 

business—at precisely the time when the House will need to be 

able to act for the Nation. 

PURPOSE OF THE HEARING

One of the most important duties of the Congress is to assure 

continuing representation and Congressional operations for the 

American people during times of crisis. This hearing marks another 

important step forward in the U.S. House of Representative’s Continuity of Congress efforts. 

Since the terrorist attacks of 9/11/2001, the Congress has taken 

a number of actions to improve the continuity of Government operations, including its own, in the face of any catastrophe. These efforts began soon after 9/11 with a number of Committees of the 

house and Senate considering both how we can prevent future attacks and how the Congress itself would function if we cannot prevent them. For example, in February 2002, the Judiciary Subcommittee on the Constitution held a hearing on a constitutional 

amendment approach to deal with the deaths or incapacitations of 

25% or more of the body by allowing the Governors of states to appoint Members to serve until special elections could be held. 

One of the most important efforts by the House since 9/11 was 

the foundational work done by the bipartisan Cox-Frost task force 

during the middle and later part of the second session of the 107th 

Congress. Led by Republican Policy Committee Chairman Cox and 

then Democratic Caucus Chairman Frost, the task force laid the 

groundwork for many of the continuity issues that the House is 

acting upon during the 108th Congress. It drew from the experience of a number of Members including Committee on Rules Chairman Dreier and Representatives Chabot, Nadler, Ney, Hoyer, 

Vitter, Baird, Jackson-Lee, and Langevin. 

Also during the close of the 107th Congress, the House and Senate enacted landmark legislation establishing a new Department of 

Homeland Security, the most significant governmental reorganization in over fifty years. Additionally, both chambers began the 

practice of adopting concurrent adjournment resolutions that would 

ensure the ability of House and Senate Leadership to convene the 

Congress in an alternative place or at an alternative time should 

it be in the public interest. 

Since the convening of the 108th Congress, the rules of the 

House also have been amended to help assure the Continuity of 

Congress. These changes were based on recommendations made by 

the Cox-Frost task force and include: (1) requiring the Speaker to 

submit a list of designees to serve as Speaker pro tempore for the 

sole purpose of electing a new Speaker in the event of a vacancy 

in the Office of the Speaker (clause 8(b)(3) of rule I); (2) providing 

for Members to serve as Speaker pro tempore in the event of the 

incapacitation of the Speaker (clause 8(b)(3) of rule I); (3) enabling 

the Speaker to suspend business in the House by declaring an 

emergency recess when notified of an imminent threat to the safety 

of the House (clause 12(b) of rule I); (4) allowing for House Leadership to reconvene the House earlier than a previously appointed 

V

1 H.J. Res. 83 (sponsored by Congressman Brian Baird) failed on passage by the Yeas and 

Nays (2⁄3 required): 63–353–2 (Roll Call Vote No. 219 on June 2, 2004). 

time (clause 12(c) of rule I); and (5) authorizing the Speaker to convene the House in an alternative place within the seat of Government (clause 12(d) of rule I). 

On April 22, 2004, the House adopted, by a vote of 306–97, a legislative solution to deal with the deaths of large numbers of Members by requiring the States to conduct expedited special elections 

within 45 days if more than 100 Members are killed. In addition, 

the Chairman of the House Committee on the Judiciary has committed to consideration of a constitutional approach to these issues 

in the near future.1 The particular focus of this hearing is to assess 

the House’s ability to function if many Members are alive but unable to carry out their duties because of serious injury. 

The Framers of the Constitution provided the nation with a 

structural framework for conducting business in the Congress that 

includes a majority quorum requirement. Under longstanding 

House precedent, which parallels Senate practice, a quorum has 

been interpreted as a majority of the Members chosen, sworn, and 

living. Thus, in a House of 435 Members, a quorum can only be 

achieved with 218 living Members. 

Under another longstanding House precedent, as codified recently in clause 5(c) of rule XX, after a recommendation to that effect by the Cox-Frost task force, the Speaker is empowered to adjust the whole number of the House (and concomitantly its quorum) 

upon the death or resignation of Members. To illustrate, if a catastrophe occurs and 225 Members of the House were found dead, the 

whole number of the House would be 210. The Speaker, under the 

Rules, would announce that fact to the House. The number required for a quorum would be 106. The House could proceed on 

that basis to conduct business. 

However, a catastrophe resulting in the incapacitations, but not 

deaths, of large numbers of Members presents a different outcome. 

Since those incapacitated Members are still alive, they remain a 

part of the quorum calculation. Thus, if a catastrophe occurs and 

225 Members are incapacitated, the whole number of the House 

would remain unchanged, i.e. 435. The number required for 

quorum would remain 218. But only 210 Members would be available to vote. The House could be unable to act if a roll call vote 

revealed the absence of enough Members to constitute a quorum for 

business. 

As a threshold matter, since it is the Constitution that sets the 

majority quorum requirement, it may be relevant to consider 

whether amending the Constitution is necessary to deal with mass 

incapacitations. On the other hand, it is also probable that the 

Constitution was adopted to facilitate the functioning of Government, not to act as a stumbling block, in times of national crisis. 

Alexander Hamilton commented on this concept in The Federalist 

Papers, #59, with respect to House elections. He said that ‘‘every 

government ought to contain in itself the means of its own preservation.’’ Additionally, Justice Joseph Story wrote in the Commentaries on the Constitution of the United States that the Congress, in representing the entire nation, must be able to exercise 

VI

certain inherent powers to deal with unforeseen circumstances 

which could threaten the continuity of its operations and the safety 

of the nation. See Commentaries on the Constitution of the United 

States, Volume II, § 842 (1970). 

In that light, the Committee on Rules majority staff has prepared a discussion draft for a proposed rules change to address the 

mass incapacitation problem. However, the hearing on April 29th 

is an oversight hearing, and there will be no formal mark up of the 

proposed draft. Rather, the discussion draft may facilitate the Committee’s discussions on these matters. Additionally, it should be 

noted that this language was based on an earlier Cox-Frost taskforce discussion proposal. 

In summary, the discussion draft does not define incapacitation 

itself; rather, it addresses the key question for the House—how will 

the House be able to act if there are large numbers of Members incapacitated? The discussion draft suggests that the inability of 

Members to respond to multiple and lengthy calls of the House 

when coupled with measures designed to confirm to the Speaker 

that a catastrophe has occurred, may allow for a House to proceed 

with a provisional quorum. This temporary, provisional quorum, 

existing only in a time of catastrophe, would consist of a majority 

of those able to respond to the calls of the House. 

Finally, the Committee expects that the hearing will include time 

for the witnesses to be thoroughly questioned by Committee Members, after the witnesses present overviews on issues such as: • How the House previously has dealt with the incapacitation 

of Members; 

• Precedents, House Rules, and laws affecting the Continuity 

of Congress; 

• Mass incapacitation and its effects on quorum; • Constitutional principles and relevant cases affecting the 

ability of the Congress to ensure that it can act in the face of 

any catastrophe; 

• Role and resources of the Attending Physician to Congress; 

and 

• Plans and procedures for dealing with a catastrophe affecting the Congress. 

(1) 

CONTINUITY OF CONGRESS: AN EXAMINATION OF THE EXISTING QUORUM REQUIREMENT AND THE MASS INCAPACITATION OF 

MEMBERS 

WEDNESDAY, APRIL 29, 2004 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON RULES, 

Washington, DC. 

The committee met, pursuant to call, at 10:05 a.m. in room H– 

313, The Capitol, Hon. David Dreier (chairman of the committee) 

presiding. 

Present: Representatives Dreier, Linder, Hastings of Washington, 

Frost, and McGovern. 

The CHAIRMAN. The Rules Committee will come to order. We obviously are dealing with some challenges in that there are no votes 

on the floor. But I am happy to see now, with Mr. McGovern here, 

that we have four members of the committee here in attendance, 

and I appreciate the interest on what is obviously an extraordinarily interesting and challenging issue that we have. 

I have some comments that I would like to make, and then I am 

going to ask two of our very able staff members, Mr. George Rogers 

and Ms. Kristi Walseth to proceed, to join in making a Power Point 

presentation to us. 

And then we are going to be hearing from the Parliamentarian 

and his colleagues, and then Admiral Eisold, and I guess we have 

got Mr. Dellinger as well. So this should be interesting. I think 

that it is going to probably take a little time for us. 

So let me begin by saying how much we appreciate all of the 

time and energy that has gone into this on the part of an awful 

lot of people. We are very happy to welcome as our first witness, 

as I said, the Parliamentarian. He has had more than four decades 

of great public service, and indeed is a great pitcher. He is very 

well known for his athletic prowess. We are wondering when he is 

ultimately going to get into the big leagues. But he will continue 

to strive to do that. But we know that he has made a lot of very 

important contributions to this institution. We appreciate his service, and the service of so many of his colleagues. And I want to 

publicly state my appreciation to the Parliamentarian and his staff 

for all of the great, great work that they have done to help me get 

through some very challenging times on the House floor, whether 

I have been presiding or dealing with legislation. 

Let me say on the 1st of April, Mr. Frost joined me in announcing this hearing. Yesterday the two of us sent a letter to the memVerDate Aug 04 2004 23:26 Sep 02, 2004 Jkt 095383 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 E:\HR\OC\A383.XXX A383
2 

bers of the committee, a letter describing what we will be covering 

today. And I hope that we can continue to approach these very important constitutional issues in a bipartisan way, which is very important. 

You know, just about 30 minutes ago, the President of the 

United States and the Vice President began their meeting with 

members of the commission focused on the tragedies of September 

11th of 2001. 

And we look at that catastrophe. I have gotten word this morning that there is a terrorist threat in my hometown of Los Angeles. 

And so we spend a lot of time realizing how September 11th has 

changed our lives. It really forced us here in this House to focus 

on the importance of assuring the American people that their government will function in times of crisis. 

This discussion started off on the right foot in the 107th Congress with the work that Mr. Frost and my California colleague, 

Mr. Cox, co-led. And I congratulate them for their fine work. They 

stayed outside of the public limelight and held private discussions 

on issues that were very difficult, like member mortality and what 

steps should be taken. 

I still believe that a bipartisan private work group approach is 

the best way for Members to freely and openly discuss their own 

possible demise and how we should plan for the continuity of Congress. There would be plenty of time for public discussion after the 

Members have thought this through together, which is what I 

think is very, very important for us to do. 

Now, from my perspective, continuity of Congress questions fall 

into three major categories: 

First, vacancies: how to best replace Members in the event of 

mass casualties resulting in death. 

Number two, mass incapacitation: how to deal with mass casualties that result in the incapacitation but not the death of large 

numbers of Members. 

And, three, administrative questions: official papers, documents, 

and what changes in our bicameral protocols are necessary for Congress to function in time of crisis. 

I want to applaud the leadership of Speaker Hastert on continuity. And I share his great love for this institution. He has been 

able to accomplish much already by fine-tuning the Rules of the 

House to respond to a crisis. 

At this point, I would like to enter into the record the statement 

outlining all of those changes that the Speaker has made. Without 

objection, it w]ill appear in the record. 

[The information follows:] 

• Authority to effect a joint-leadership recall from a period of adjournment to an 

alternate place (in concurrent resolutions of adjournment). 

• Authority to effect a joint-leadership recall from a period of adjournment 

through designees (in concurrent resolutions of adjournment). 

• Anticipatory consent with the Senate to assemble in an alternate place (in a putatively biennial concurrent resolution on the opening day of a Congress). 

• Requirement that the Speaker submit to the Clerk a list of Members in the 

order in which shall act as Speaker pro tempore in the case of a vacancy in the 

Office of Speaker (including physical inability of the Speaker to discharge his 

duties) until the election of a Speaker or a Speaker pro tempore, exercising such 

3 

authorities of the Speaker as be necessary and appropriate to that end (clause 

8 of rule I). 

• Authority for the Speaker to suspend pending business of the House by declaring an emergency recess subject to the call of the Chair when notified of an imminent threat to the safety of the House (clause 12(b) of rule I). 

• Authority for the Speaker, during any recess or adjournment of not more than 

three days, in consultation with the Minority Leader, to postpone the time for 

reconvening or to reconvene before the time previously appointed solely to declare the House in recess, in each case within the constitutional three-day limit 

(clause 12(c) of rule I). 

• Authority for the Speaker to convene the House in an alternate place within 

the seat of government (clause 12(d) of rule I). 

• Codification of the long-standing practice that the death, resignation, expulsion, 

disqualification, or removal of a Member results in an adjustment of the whole 

number of the House, which the Speaker shall announce to the House and 

which shall not be subject to appeal (clause 5 of rule XX). 

• Establishment of a Select Committee on Homeland Security with oversight and 

legislative jurisdiction over matters relating to the Homeland Security Act of 

2002 identified by the speaker and the responsibility to make recommendations 

concerning future legislative jurisdiction over homeland security matters (sec. 

4, H. Res. 5, 108th Cong.). 

• Establishment of an Appropriations Subcommittee on Homeland Security. 

The CHAIRMAN. In addition, there are a number of things that we 

should consider for the continuity of Congress. The entire House 

voted to support the idea of sitting down with our colleagues in the 

Senate in a similar bipartisan manner to try to see where we could 

agree on these issues of continuity. Unfortunately, the Senate declined this approach to work out our differences, which I believe is 

very unfortunate. 

There have been a number of issues during this Congress that 

could have benefited from that kind of bicameral dialogue that we 

very much wanted to have, and frankly are still pursuing if we possibly can. 

One example. I wrote to the Senate leadership in November of 

2003, because the language of the Senate adjournment resolution 

did not include the language regarding the call-back power of designees and the ability of leadership to reconvene in an alternative 

place. And we know our House versions consistently have included 

this language, and we hope very much that it could become a 

boilerplate for both houses of Congress. 

Because of the importance of engaging the Members on these 

very crucial issues for the institution, I have asked our colleague 

who is here, Mr. Doc Hastings, who managed the rule last week 

on the House floor on the continuity issue—he has shown a great 

deal of leadership on these questions that we have had—I have 

asked him to work informally with the Members to find out their 

views on these very, very important matters that we have. 

First, let me comment on the issue of vacancies. Regarding that 

category I note, and I just mentioned last week, the House adopted 

the Continuity in Representation Act. And this was legislation that 

I was pleased to join the Chairman of the Judiciary Committee in 

offering. It passed, I am happy to say, with a very strong bipartisan vote, which has been our goal all along, of 306 to 97. 

This legislation, as everyone knows, requires the States to conduct expedited special elections to fill vacancies created by the 

deaths of large numbers of Members. I also would note that some 

4 

Members prefer a constitutional approach for dealing with vacancies. It is unclear whether even a simple majority of the House, let 

alone the two-thirds, would support a constitutional amendment. 

Nonetheless, I am very pleased that we have an agreement with 

the Judiciary Committee chairman to proceed with the consideration of the constitutional approach, which I know a number of 

Members have encouraged, on the issue of mass incapacitation. 

The second category on the continuity, which we are really focusing on in this hearing today, and that is, as I say, the topic that 

we have, it is a much more difficult issue, and we are only beginning to fully examine and vet it with the Members of the House. 

Let me briefly illustrate the particular problem that mass incapacitation could present. 

The framers of the Constitution provided the Nation with a 

structural framework for conducting business in the Congress that 

includes a majority quorum requirement. And under longstanding 

House precedent, which parallels the Senate practice, a quorum 

has been interpreted as a majority of the Members chosen, sworn, 

and living. Thus, in the House, with 435 Members, a quorum can 

only be achieved with 218 Members, living Members. 

Under another longstanding House precedent, which we codified 

in clause 5(c) of rule XX, the Speaker is empowered to adjust the 

whole number of the House, and thus its quorum, upon the death 

or resignation of Members. Thus, if a catastrophe occurs and 225 

Members of the House were found dead, the whole number of the 

House would be reduced to 210. The Speaker under the rules would 

announce that fact to the House. The number required for quorum 

would then, of course, be 106. The House could proceed on that 

basis to conduct its business. 

Now, a catastrophe resulting in the mass incapacitations but not 

deaths of a large number of Members obviously presents a very, 

very different outcome. Since those incapacitated Members are still 

alive, they remain a part of the quorum calculation. Thus, if a catastrophe occurs and 225 Members are incapacitated, the whole 

number of the House would remain unchanged, 435 Members. 

Now, the number required for quorum would, of course, remain at 

218, but only 210 Members would be eligible to vote. The House 

would be unable to act if a roll call vote required the presence of 

Members to constitute a quorum for business. 

The Constitution sets the majority quorum requirement, and 

some believe that this, too, is an important issue that requires a 

constitutional approach. It is no secret that I am very hesitant to 

touch the Constitution on any issue at all. That is why I like to 

point to Alexander Hamilton’s quote. Last week I spent my time 

quoting Madison, who was to me the father of the Constitution and 

a lead author of The Federalist Papers. But I am going to point to 

a couple of Hamilton quotes. In Federalist 23 he said: ‘‘It is impossible to foresee or define the extent and variety of national exigencies and the corresponding extent and variety of the means which 

may be necessary to satisfy them. Circumstances that endanger the 

safety of nations are infinite, and for this reason no constitutional 

shackles can be wisely imposed. I believe that the Constitution was 

adopted to facilitate the functioning of representative government, 

not to be a stumbling block, particularly in times of national crisis.’’ 

5 

Supreme Court Justice Joseph Story said, in the Commentaries 

on the Constitution of the United States, the Congress, in representing the entire Nation, must be able to exercise certain inherent powers to deal with unforeseen circumstances which could 

threaten the continuity of its operations and the safety of the Nation. 

Now, the framers have agreed, we obviously agree with Justice 

Story. 

And Alexander Hamilton went on, in The Federalist Papers 59, 

to say: ‘‘Every government ought to contain in itself the means of 

its own preservation.’’ 

Additionally, I would note that even if we ultimately have to pursue a constitutional amendment approach, we would need a rule to 

implement the amendment. So this is, like the majority staff has 

suggested, a way for us to address the mass incapacitation problem 

by amending the House rules. It is a discussion draft, and draws 

on work done by the Cox-Frost task force. 

In summary, the draft does not define ‘‘incapacity’’ itself; rather, 

it addresses the question for the House: How will the House be 

able to act if there are large numbers of Members incapacitated? 

The draft suggests that the inability of Members to respond to multiple and lengthy calls of the House, when coupled with measures 

designed to confirm to the Speaker that a catastrophe has occurred, 

may allow for the House to proceed with a reduced quorum. 

This temporary provisional quorum, existing only in a time of catastrophe, would constitute a majority of those able to respond to 

the calls of the House. 

Let my say that I do look forward to the testimony that is going 

to be offered by our witnesses. And I want to recognize our colleague who is the ranking minority member of the House Committee on Administration, Mr. Larson. 

I want to compliment him on not only the fact that he is here 

today, but on the tremendous effort that he has put into this, and 

the way that he handled the debate last week that we had on the 

House floor. He has been a real pleasure to work with, and he joins 

me, and I know the rest of the members of this committee and 

many Members of the House, to be very dedicated to this institution. 

Finally, I would like to turn briefly to the third category of the 

continuity of Congress, and that is administrative questions. I believe that we need to ensure that in a national emergency we can 

perform the basic requirements of our bicameral system. The 

Speaker has taken the leadership on the emergency and safety aspects of these questions. 

I think we need to also assess whether our congressional protocols and structure are there so that both houses of Congress can 

continue to legislate and fulfill their respective constitutional duties in times of national crisis. 

So with that, before we hear from the Parliamentarian and his 

colleagues, I would like to call on George and Kristi now, to give 

us a brief presentation that might allow us to address some of the 

questions that we have. 

6 

2 Id. 

PREPARED STATEMENT OF CONGRESSMAN DAVID DREIER, CHAIRMAN

On April 1st, 2004, Ranking Member Martin Frost joined me in announcing this 

hearing. Yesterday we sent all of the Members of the Committee a letter describing 

what we will be covering today. I am hopeful that we can continue to approach 

these important institutional issues with this kind of comity. 

The unfortunate catastrophe on September 11th forced the House to focus on the 

importance of ensuring the American people that their government will function in 

a time of crisis. This discussion started off on the right foot in the 107th Congress 

with the work of the bipartisan task force led by Representatives Chris Cox and 

Martin Frost. 

They stayed outside of the public limelight to privately discuss issues like Member 

mortality and what steps should be taken. I still believe that a bipartisan, private 

working group approach is the best way for Members to freely and openly discuss 

their own possible demise and how we should plan for the Continuity of Congress. 

There would be plenty of time for public discussion after the Members have thought 

this through together. 

From my perspective, Continuity of Congress questions fall into three major categories: 

(1) vacancies—how to best replace Members in the event of mass casualties 

resulting in death; 

(2) mass incapacitation—how to deal with mass casualties that result in the 

incapacitation, but not death, of large numbers of Members; and 

(3) administrative questions—official papers, documents, and what changes in 

our bicameral protocols are necessary for Congress to function in crisis. 

I applaud the Speaker’s leadership on Continuity and share his love for this great 

institution. He has been able to accomplish much already by fine-tuning the rules 

of the House to respond to a crisis. At this point, I would ask unanimous consent 

to enter into the record a statement on the Speaker’s efforts on Continuity. 

In addition, there are a number of things that we should consider for the Continuity of Congress. The entire House voted to support the idea of sitting down with 

our colleagues in the Senate in a similar bipartisan manner to try to see where we 

could agree on continuity issues. 

The Senate declined this approach to working out our differences, which is unfortunate as there have been a number of issues during this Congress that could have 

benefited from that kind of dialogue. 

For example, I wrote the Senate leadership in November 2003 because the language of Senate adjournment resolutions did not include language regarding the 

‘‘call back’’ power of designees and the ability of leadership to reconvene in an alternative place. Our House versions consistently have included this language, and we 

hoped it would become boilerplate. 

Because of the importance of engaging the Members on these crucial issues for 

the institution, I have asked Congressman Doc Hastings, who has shown real leadership on Continuity issues, to work informally with the Members to find out their 

views on these important matters. 

VACANCIES

Regarding the first category of the Continuity of Congress, vacancies, I note that 

last week the House adopted the Continuity in Representation Act. I authored this 

measure with the Chairman of the Judiciary Committee, and it passed with a bipartisan vote of 306–97. This legislation requires the states to conduct expedited special 

elections to fill vacancies created by the deaths of large numbers of Members. 

I also note that some Members prefer a constitutional approach for dealing with 

vacancies. It is unclear whether even a simple majority of the House, let alone the 

necessary two-thirds, would support a constitutional amendment. Nonetheless, I am 

pleased that the Judiciary Committee Chairman has agreed to consider a constitutional approach to these issues in the near future.2

7 

MASS INCAPACITATION

Turning to the second category of the Continuity of Congress—and the subject of 

today’s hearing—mass incapacitation, this is a very difficult issue, and we are only 

just beginning to fully examine and vet it with the general Membership. 

Let me briefly illustrate the particular problem that mass incapacitations could 

present. The Framers of the Constitution provided the nation with a structural 

framework for conducting business in the Congress that includes a majority quorum 

requirement. 

Under longstanding House precedent, which parallels Senate practice, a quorum 

has been interpreted as a majority of the Members ‘‘chosen, sworn, and living.’’ 

Thus, in a House of 435 Members, a quorum can only be achieved with 218 living 

Members. 

Under another longstanding House precedent (codified recently in Clause 5(c) of 

rule XX), the Speaker is empowered to adjust the whole number of the House (and 

thus its quorum) upon the death or resignation of Members. 

Thus, if a catastrophe occurs and 225 Members of the House were found dead, 

the whole number of the House would be 210. The Speaker, under the Rules, would 

announce that fact to the House. The number required for a quorum would be 106. 

The House could proceed on that basis to conduct business. 

A catastrophe resulting in the incapacitations, but not deaths, of large numbers 

of Members could present a very different outcome. Since those incapacitated Members are still alive, they remain a part of the quorum calculation. 

Thus, if a catastrophe occurs and 225 Members are incapacitated, the whole number of the House would remain unchanged—435 Members. The number required for 

quorum would remain 218. But only 210 Members would be available to vote. The 

House could be unable to act if a roll call vote revealed the absence of enough Members to constitute a quorum for business. 

The Constitution sets the majority quorum requirement, and some believe that 

this too is an issue requiring a constitutional approach. However, I think Alexander 

Hamilton had it right when he said: ‘‘It is impossible to foresee or define the extent 

and variety of national exigencies, and the corresponding extent and variety of the 

means which may be necessary to satisfy them. The circumstances that endanger 

the safety of nations are infinite, and for this reason, no constitutional shackles can 

wisely be imposed . . . .’’—Alexander Hamilton, The Federalist Papers, No. 23. 

I believe that the Constitution was adopted to facilitate the functioning of representative Government—not to be a stumbling block, particularly in times of national crisis. 

As Supreme Court Justice Joseph Story said in the Commentaries on the Constitution of the United States, the Congress, in representing the entire nation, must be 

able to exercise certain inherent powers to deal with unforeseen circumstances 

which could threaten the continuity of its operations and the safety of the nation. 

See Commentaries on the Constitution of the United States, Volume II, § 842 (1970). 

The Framers of the Constitution would have agreed with Justice Story, as do I. 

In the words of Alexander Hamilton, with respect to House elections: ‘‘Every government ought to contain in itself the means of its own preservation.’’—Alexander 

Hamilton, The Federalist Papers No. 59. 

Additionally, I would note that even if we ultimately have to pursue a Constitutional amendment approach, we would need a rule to implement such an amendment and an approach to adopt now, not years from now, while we waited upon ratification of the requisite number of states. 

In this light, the majority staff of the Committee on Rules has suggested a way 

for us to address the Mass Incapacitation problem by amending the House rules. 

It is a discussion draft and draws on work done by the Cox-Frost task force. In 

summary, the draft does not define incapacitation itself; rather, it addresses the key 

question for the House—how will the House be able to act if there are large numbers of Members incapacitated? 

The draft suggests that the inability of Members to respond to multiple and 

lengthy calls of the House, when coupled with measures designed to confirm to the 

Speaker that a catastrophe has occurred, may allow for the House to proceed with 

a reduced quorum. This temporary, ‘‘provisional’’, quorum, existing only in a time 

8 

of catastrophe, would consist of a majority of those able to respond to the calls of 

the House. 

I look forward to hearing both from our witnesses and from our Members about 

this approach. 

ADMINISTRATIVE QUESTIONS

Finally, I’d like to turn briefly to the third category of the Continuity of Congress, 

‘‘administrative questions.’’ I believe that we need to ensure that in a national emergency, we can perform the basic requirements of our bicameral system. The Speaker 

has taken leadership on the emergency and safety aspects of these questions. I 

think we need to also assess whether our Congressional protocols are structured so 

that both Houses of Congress can continue to legislate—and to fulfill their respective constitutional duties in times of national crisis. 

Mr. FROST. Mr. Chairman, let me—you had asked me if I wanted 

to make a formal opening statement, which I don’t have a formal 

prepared opening statement, but I do want to make a couple of 

points. 

The CHAIRMAN. Please do. 

Mr. FROST. And this will be developed in the course of the testimony, and it has been highlighted by your opening statement. The 

question is determining the quorum under the standard of sworn 

and living. And the question in terms of sworn and living, of 

course, evolves down to the issue of incapacity. 

One of our witnesses in his prepared statement, Walter Dellinger 

from Duke, has urged this body, this committee, that any resolution of this matter as to determining the number of sworn and living be done on a bipartisan basis. I think it is very important that 

that be incorporated in any rule that ultimately is reported out. 

The discussion draft is interesting. It does not contemplate—if I 

am reading it correctly, it does not contemplate the type of bipartisan participation that Professor Dellinger is recommending. And 

the only reason this is of consequence is the experience that occurred in my home State last year. This was not a natural catastrophe, but it did go to determining the existence of a quorum. I 

know the gentleman is familiar with what happened. This was a 

political issue involving congressional redirecting, and there was 

not a constitutional quorum present. And, in fact, the house could 

not—the State house could not operate because there was not a 

constitutional quorum. 

There is a fine line between determining what is a national catastrophe and what might be the exercise of the majority’s will to 

reduce the number of a quorum. And the discussion draft speaks 

in terms of a catastrophe. It is unclear exactly how this would be 

implemented, because it is a discussion draft without particulars. 

The CHAIRMAN. Well, that is why it is a discussion draft. 

Mr. FROST. I understand. We would be—we would need, if we approved a rule of this nature, to be very clear as to what constituted 

a catastrophic situation. And I would urge that any rule many incorporate the bipartisan participation that Professor Dellinger is 

recommending in his prepared statement. 

The CHAIRMAN. Well, thank you very much. We look forward to 

his testimony. And obviously this is the first time that we have had 

a hearing on this issue. And I do appreciate the perspective that 

the gentleman offers. 

9 

Anyone else wish to offer any opening statements? Okay. Then 

why don’t we ask George and Kristi to proceed with the Power 

Point presentation for us. 

Mr. ROGERS. I will be very brief, because the Chairman’s statement went over these issues very clearly. We all know that terrorists can attack the Capitol at any time, and the American people 

expect that we will have plans in place to deal with that. 

One of the questions we are here to talk about is the quorum in 

the House. And under the Constitution, Article 1, section 5, a 

quorum is a majority of Members. So for a fully constituted House, 

that is 218 out of 435. 

As the Chairman mentioned, the House precedent is those Members chosen, sworn, and living. The problem, as he stated, was if 

Members are alive, they are still living, so they are still in the 

quorum. This yields what I am calling the ‘‘quorum trap.’’ And 

some people don’t like that term, but if you have 100 Members incapacitated, for example, a quorum remains a majority of the full 

House, 218, because they are still living. So you have 335 Members 

who can vote, and business would still continue. If there are 175 

incapacitated, the quorum is still 218, you also have 260 Members 

able to vote, business continues. 

As soon as you have a majority of Members incapacitated, that 

is where you start to build problems, because the quorum will remain 218 but you, by definition, won’t have 218 who will be able 

to vote. 

Now, if we are proceeding in the context of post-tragedy, like we 

did on 9/11, where there is a lot of agreement on both sides, we 

won’t have a lot of roll call votes, that is one thing. But it is the 

opinion of the majority staff that you would be thinking about all 

of the ‘‘what ifs’’ for the situation, and you could get into a roll call 

vote and not be able to attain a quorum. 

So in the absence of a quorum, the Constitution is specific for 

two things to be done. We can adjourn from day to day, and we can 

compel the attendance of the Members. The House rules compelling 

the Members to be in attendance is done by motion of 15 or more 

Members. 

As the Chairman mentioned, if a number of Members die, the 

current House rules adjust for that through the Speaker. So if people die, the whole number drops, and then the majority of that 

whole number also drops, so the quorum drops automatically when 

Members die. But if they are incapacitated, the quorum remains 

the same. 

This brings us to the question of defining incapacitation, something I am hopeful we will hear a lot from our witnesses today. I 

think that we will find that they will say it is fact-specific; when 

we talk about what would happen if we have 218 or more Members 

incapacitated, really we are talking about 218 fact-specific situations. And one key question is, Who would decide that—the attending physician, the Member, him or herself, the Member’s family, or 

the House? 

So the majority staff came up with the proposed solution in the 

folders to the Members and which was distributed to the staff. And 

it is an immediate solution. 

10 

As the Chairman mentioned, if we went into a constitutional 

amendment approach, that would take a period of time. We could 

still have a catastrophic situation before we could get it ratified by 

the required three-quarters of the States. But it also has a number 

of questions that we hope are answered by witnesses today. 

Is it constitutionally infirm to proceed on this basis? Would it 

bring our laws that we passed into question? Who would be able 

to challenge? Who would have standing to challenge our actions? 

And how much might the courts rule? 

Mr. FROST. Mr. Chairman, could I make one point, because I 

think it is very important to point out the distinction here. This 

does not—this whole discussion does not deal with what would 

happen if a large number of Members were killed. Because if a 

large number of Members were killed, the quorum would, in fact, 

be reduced. 

The CHAIRMAN. Right. 

Mr. FROST. If the number of Members surviving, sworn, and living would be potentially very small, this is a point that I have 

made on the floor of the House, that—— 

The CHAIRMAN. I covered that in my statement as well. 

Mr. FROST. If 430 Members were killed, and you had 5 Members 

remaining, if I understand the Constitution and the precedents, 

then 3 of those 5 remaining Members would constitute a quorum, 

and the House could in fact conduct business. 

The only issue would be, whether the public would respect the 

action taken by that small a number. And that really goes to the 

question of whether this is necessary for a constitutional amendment, so that you have a large House reconstituted over a short period of time. That is not what we are talking about. 

What we are talking about today is the grey area where a number of Members are incapacitated but not dead, and so that you 

still have this constitutional quorum of a majority of the total 

House and how you deal with that, 

The CHAIRMAN. Right. 

Mr. FROST. The issue of whether it is necessary to have a constitutional amendment, in my mind, deals with the issue of when 

you have a large number of Members killed, not when you have a 

significant number incapacitated. 

The CHAIRMAN. I know. We had that discussion at length, I know 

both here and on the House floor. You are correct in your assessment. 

Do you want to add anything, Kristi? 

Ms. WALSETH. No. You have all covered it very well. 

Mr. FROST. Mr. Chairman, again I would ask the witnesses—and 

I don’t know if, as we, each witness has had a chance to review the 

discussion draft. I would hope that they have, because I will want 

to be able to ask the witnesses questions about the discussion 

draft, because I have serious reservations about the discussion 

draft. 

The CHAIRMAN. Well, that is what a discussion draft is all about. 

Let me, as I have already welcomed several times, and say that 

it is a great pleasure for us to have the Parliamentarian here. It 

is very rare to have a hearing at which both the Parliamentarian 

as well as the Attending Physician participate. That underscores 

11 

the gravity of this issue. We know it is one that is a serious one 

that needs to be addressed. That is why we appreciate all of the 

time and effort and thought that has gone into this testimony from 

all who are on this panel. 

So, Charlie, let me welcome you. And please proceed as you wish. 

If you do have any prepared remarks, they will appear in the 

record in their entirety. 

STATEMENT OF HON. CHARLES W. JOHNSON, PARLIAMENTARIAN OF THE HOUSE, U.S. HOUSE OF REPRESENTATIVES 

Mr. JOHNSON. Yes, Mr. Chairman. I appreciate you putting my 

prepared remarks into the record. 

Thank you for the opportunity, Mr. Chairman, members of the 

Rules Committee. It is an honor. What I thought I would do is 

allow my colleagues, Deputy Parliamentarians John Sullivan and 

Tom Duncan, to contribute as well, and to start from the Cox-Frost 

task force considerations to summarize where we were in those deliberations. 

The Parliamentarians all participated in all of them. Mr. Frost 

obviously was in all of them. The participation was excellent on all 

sides. It was truly a bipartisan task force, but it realized its limits. 

Part of the reason it realized its limits was a result of some of the 

questions that were asked during the task force. Mr. Frost asked 

many penetrating questions. 

Those questions went to the precedents of the House as they now 

exist and to our interpretation, including the Speaker Cannon ruling in 1906 which remains the precedent today. It is not a black 

letter rule, but it has as much force and effect, absent a black letter rule, as the Senate rule which is a black letter rule. Both 

houses properly at this point have the same rule, the same interpretation; namely, that a quorum is a majority of those living and 

sworn. 

It wasn’t always that way. Prior to the Cannon ruling, it could 

be a majority of those living. And so when Speaker Joe Cannon in 

1906 made the ruling, which was not appealed, he cited the length 

to which the Senate had gone since the Civil War, where there 

were elected Senators as there were elected House Members who 

were not sworn, because of the secession of the Southern States. 

Since 1906, the two houses have been consistent in this respect, 

to my knowledge, since then and since this last year when The 

House invited the Senate to join in the joint committee. The Senate 

has not specifically addressed this question of massive incapacitation, although it does affect the Senate as it does the House. 

The Senate doesn’t have the luxury of filling seats, where Senators are incapacitated, through Governors’ appointments. That 

only comes when the seats are vacant. So in this respect, the Senate and the House are in the same boat, and hopefully whether 

there is a joint committee or other dialogue, the two houses will approach this in a thoughtful and perhaps consistent way. 

In the Cox-Frost meeting, I was asked by Mr. Cox, ‘‘All right, 

what would happen if the Speaker were called upon to rule, there 

being no black letter rule?’’ I said, ‘‘The Speaker would abide by the 

Joe Cannon precedent of 1906 because that precedent has the force 

and effect, as it should, of an adopted rule of the House.’’ 

12 

And the question then was, ‘‘Well, what if there was an appeal 

from that ruling? What would the quorum requirement be if Speaker Cannon or any other Speaker chose to depart from precedent 

without a rule of the House, without a Rules Committee coming in, 

analyzing it, and reporting to the House; but rather, the Speaker 

unilaterally , based on the exigencies of the disaster, of the catastrophe, thought that the national interests required him to make 

a ruling that a lesser quorum could suffice, even though there were 

incapacitations and not deaths?’’ 

And I said, ‘‘Well, the Speaker, if he did make such a ruling, it 

would not be on my advice; and if he were to make it, it would be 

appealable, and the vote on the appeal would require a quorum of 

the House as established by precedent up to that point, those living 

and sworn. So the Speaker’s ruling wouldn’t be final until the 

House, with a quorum present, assuming an appeal, had determined the validity of the Speaker’s ruling.’’ 

So the task force, I think Mr. Frost will agree, stopped at that 

point and said, ‘‘well, we know that. What we want to do in the 

time we have is to recommend bipartisan rules changes to the 

House, to the extent that the House can and has time to look at 

what we will all agree on is not only bipartisan, but where we have 

had enough time to analyze the issues.’’ 

It was clear at that point, in July of 2002, that there was perhaps not time to immediately analyze this question of mass incapacitation; but we were asked to cooperate with staff, bipartisanly 

to look at rules change language, while also looking at the question 

of the constitutionality of the effort, if there were an effort made 

by the House to adopt a rule without a constitutional amendment 

sanctioning that step by the House. 

All of those questions, as posed on the graphic, are legitimate 

questions. Is a rules change of this sort constitutionally infirm? I 

don’t have a clear answer. 

The Constitution carves out, as my submitted statement suggests, two areas—and the graphic showed that—where the House 

can, with a smaller than majority, do certain things. One is adjourn from day to day. Two is to compel the attendance of absentees. That has been built into the Rules of the House since the first 

Congress. 

Can the House adopt this kind of incapacitation rule constitutionally? Some would argue that compelling public interest and the 

Nation’s very existence, coupled with the conferral of Article 1 authority on the Congress to wage war and to provide for the common 

defense, would be so overwhelming as to suggest that consistent 

with that conferral of authority in Article 1, the Congress, the 

House, could and should, without necessarily having a specific constitutional permission, proceed to consider and adopt a rule with 

respect to incapacity. 

That is part of what we want to raise as the issue. We don’t have 

the definitive answer. The subsequent questions that are raised, 

are again all legitimate. All Members take an oath to support and 

defend the Constitution of the United States against all enemies, 

foreign and domestic. Does it put a responsibility on the Members 

of the Rules Committee to seriously consider and agree that, yes, 

the House can, because of this overwhelming national interest, proVerDate Aug 04 2004 23:26 Sep 02, 2004 Jkt 095383 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 E:\HR\OC\A383.XXX A383
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ceed? Can the House, without a direct constitutional amendment, 

adopt such a rule? 

If the House were to wait and adopt such a rule during a catastrophic circumstance, clearly then its effort and its resulting work 

product would be questioned. I am not saying that the legislation 

enacted under a rule adopted during a dispassionate period of time 

such as the present would necessarily be less subject to collateral 

challenge. 

Clearly the Frost-Cox task force realized that this discussion was 

going to happen. And it is right for it to happen now, because there 

is not yet a catastrophic circumstance. 

And it is right to ask and it is right to bring in constitutional 

scholars to answer the third, fourth, and fifth questions that were 

raised on the graphic; namely, who could challenge the rule itself 

or a law enacted thereunder, who—other than the House, who 

could challenge? When could a challenge be brought? And what 

would the courts say? 

Those are questions to which we as Parliamentarians have no 

dispositive answers. But if the House brings this rule to the floor, 

or something akin to it, the question of its constitutionality is 

framed for the House and is under the precedents decided by the 

House by the vote on the adoption of such a rule. 

Let’s assume that—a draft of this sort is reported from the Rules 

Committee and brought to the House as a privileged resolution 

amending the rules of the House, and a Member were to make a 

point of order. ‘‘Mr. Speaker, I make the point of order that this 

rule is unconstitutional.’’ The Speaker’s response—there is plenty 

of precedent for this, although not under these precise circumstances—would be that the House by voting on its rules, on the 

merits of the rule, determines and incorporates all of the arguments on constitutionality. The Chair does not make a threshold 

ruling which would be separately and preliminarily appealable. 

So I wanted you to have that background. If I were—in the Parliamentarian chair, advising the Speaker should such a rule come 

to the floor, and a Member were to make a point of order against 

it on constitutional grounds, the House does not have—a threshold 

mechanism for separately arguing and determining constitutionality. 

That is, the compelling reason for being here in the Rules Committee today. The Cox-Frost task force envisioned it, realized that 

it was too complicated to make a firm recommendation in the time 

that it had. 

Mr. Frost made the comment a few moments ago that perhaps 

a constitutional amendment is not needed on the question of 

whether the House can do this by rule. You raised the key question 

for this meeting today. I don’t know the answer to that question 

precisely. 

The constitutional amendments we have seen address the question of appointment of Members, may also address the constitutional sanction for the House to proceed in this area as a further 

carveout to conduct business with less than a quorum. I am not 

aware that any of the precise drafts, the Brian Baird draft, the 

Lofgren draft, the Rohrabacher draft, the Larson draft specifically 

empower the House to make these rules changes. The threshold 

14 

question in Mr. Dellinger’s testimony is compelling in this area. It 

is certainly challenging for the Rules Committee today. 

With that background our office has been available. We are not 

the architects of the rules change, of the draft that you have seen, 

and clearly there are areas for discussion in that draft. It is important that there be a starting point. 

So the question of the Speaker’s role in determining a catastrophic circumstance—as a nonpartisan, I couldn’t agree more 

with Mr. Frost—that in a determination of a catastrophic circumstance triggering such a rule, the Speaker be the one to trigger 

the implementation of such a rule! What evidence, what testimony, 

would he need to rely on? What concurrence or consultation role 

would need to be built into the rule, or into the legislative history 

underlying the rule, is the other essential ingredient for this committee to examine. 

The rule draft, as I recall, says that if the Speaker invokes the 

catastrophic circumstance standard, that it not be appealable. That 

is necessary, because if his invocation of a circumstance which 

would allow a smaller quorum to operate were appealable, the 

same conundrum would exist, as I said earlier that a majority of 

those living and sworn, quorum of the full House would be required 

to allow the Speaker’s invocation of that new standard. 

Clearly the question of how and when the Speaker invokes the 

rule is very technical and very important. We thought the notion 

of the premise, the final test of whether there are incapacities 

should be attendance in the House. The built-in safeguards in the 

draft that you have seen against an inappropriate invocation of 

that rule are already in the Constitution. If the House saw potential incapacitations, the House could adjourn from day to day with 

less than a quorum, and could deny the Speaker the ability to trigger this incapacitation rule by less than a quorum. In addition to 

adjourning from day to day, the House can also, by less than a majority, compel the attendance of its absentees, which is the very 

premise upon which a Speaker’s declaration of incapacity would be 

decided. 

So clearly the challenge to your question is, yes, there are constitutional issues. Two, what should the rule guarantee as far as 

the protections so that any Speaker would not be able to utilize the 

rule for other than promotion of the public interest. 

The CHAIRMAN. Do we want to hear from John or Tom? 

Mr. JOHNSON. Absolutely. 

The CHAIRMAN. We would love to very much. 

[The prepared statement of Charles Johnson follows:] 

PREPARED STATEMENT OF CHARLES JOHNSON, PARLIAMENTARIAN, U.S. HOUSE OF

REPRESENTATIVES

Chairman Dreier; Ranking Minority Member Frost; and distinguished members 

of the committee: I appreciate the opportunity to participate in your review of this 

very important matter. 

The prospect of mass incapacitations among Members of the House raises serious 

questions. From a parliamentary perspective, the most immediate of these relate to 

the quorum requirement. 

What is ‘‘the House’’? 

The Constitution requires the presence of a majority of the House to do business. 

However, just as the Constitution leaves it to the House to determine what is busiVerDate Aug 04 2004 23:26 Sep 02, 2004 Jkt 095383 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 E:\HR\OC\A383.XXX A383
15 

1For example, over time the House has determined that none of the following constitute business requiring a quorum; the opening prayer, the administration of the oath of office to a Member-elect, certain motions incidental to a call of the House, or an adjournment. Indeed, by adopting clause 7(a) of rule XX the House has determined that the mere conduct of debate, where 

the Chair has not put the pending proposition to a vote, is not ‘‘business’’ requiring a quorum. 2 Hinds’ Precedents, volume 4, sections 2889 and 2890, which record the events of March 16, 

1906, and April 16, 1906, respectively. 3 Hinds’ Precedents, volume 4, section 2977. 

4 Codified in clause 4(b) of rule XX. 

5 Hinds’ Precedents, volume 4, section 2895. 

6 144 U.S. 1 (1892). 

7 Hinds’ Precedents, volume 4, section 2917. 

8Since 1864, clause 1 of Senate rule VI has read as follows: ‘‘A quorum consist of a majority 

of the Senators duly chosen and sworn.’’ 9 Hinds’ Precedents, volume 4, sections 2890; Cannon’s Precedents, volume 6, section 638. 

ness,1 so also does it allow the House to determine what is the House. Thus, in attempting to discern within precisely what number the Constitution requires a majority, the seminal precedents of the House on composing a quorum begin with the 

question ‘‘What is ‘the House’?’’ 

On a clean slate, this question obviously could admit more than one answer as 

sensible. For example, the House could decide to measure its whole number by the 

number of its seats. As it happens, the House has chosen to establish its whole 

number as the number of its Members, including all persons ‘‘chosen, sworn, and 

living’’ (excepting, of course, any whose Membership has been terminated by resignation or by action of the House). The precedents that record the development of 

this living-and-sworn standard 2 are most instructive. They are abstracted in the attachment. 

Until 1890 the House viewed that the Constitutional requirement of a quorum 

made it necessary for a majority of the Members to vote on a matter. Under that 

practice, a large faction of Members might break a quorum simply by refusing to 

respond to the call of the roll, even though present.3 With the historic ruling by 

Speaker Reed 4 to the effect that Members present in the Chamber but not voting 

may be counted in determining the presence of a quorum,5 that practice changed. 

Speaker Reed’s ruling was upheld by the United States Supreme Court in United 

States v. Ballin.6 The Court declared that the authority of the House to transact 

business is ‘‘created by the mere presence of a majority’’ (emphasis supplied). Since 

1890, the point of order regarding lack of a quorum has been that a quorum is not 

present, not that a quorum has not voted.7

What is a quorum? 

A quorum may be expressed as a fraction. The numerator is the number of Members who are present. The denominator is the number of Members who are extant. 

Because the issue in Ballin was Speaker Reed’s method of counting the number of 

Members present, the decision of the Supreme Court addressed the numerator of 

this fraction. In dictum the Court examined the question ‘‘how shall the presence 

of a majority be determined?’’ and observed that, because the Constitution does not 

prescribe any method for determining the presence of such majority, it is within the 

competency of the House ‘‘to prescribe any method which shall be reasonably certain 

to ascertain the fact.’’ 

Thus in 1906, consistent with the dictum in Ballin, Speaker Cannon employed the 

still-current method of counting the number of Members extant. After reviewing the 

perspectives of his predecessors across the 19th century and with special regard for 

the considered judgment of the Senate on the same question,8 Speaker Cannon held 

that once the House is organized for a Congress ‘‘a quorum consists of a majority 

of these Members chosen, sworn, and living, whose membership has not been terminated by resignation or by the action of the House.’’ 9

Alternate standards 

Modern prospects of catastrophe raise the question whether a standard more discriminating than ‘‘living’’ might be necessary or appropriate under some circumstances. One of the challenges of the ‘‘incapacitation’’ issue is whether the 

House might legitimately shift between alternate approaches to calculating the denominator of the quorum fraction. Obviously any such dynamism in calculating ‘‘the 

House’’ would need to occur not merely on opportunistic bases but, rather, under 

appropriately certified catastrophic circumstances. 

During the meetings of the Cox-Frost task force on continuity of legislative operations in 2002, the Parliamentarian was asked whether he ever would advise the 

Chair to depart from the living-and-sworn precedent in the event of a catastrophic 

event that were shown to have disabled a large number of Members without necVerDate Aug 04 2004 23:26 Sep 02, 2004 Jkt 095383 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 E:\HR\OC\A383.XXX A383
16 

10 144 U.S. 1 (1892). 11Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994). 12Skaggs v. Carle, 110 F.3d 831 (D.C. Cir. 1997). 13 Another consideration is that neither the Constitution nor the Ballin decision contemplates 

any notion of ‘‘virtual presence.’’ The founders provided for Houses of Congress that ‘‘assemble,’’ 

and ‘‘meet,’’ and forge bicameral consent to adjourn for any extended period or to meet elsewhere. They provided for Houses of Congress that keep journals, and adjourn from day to day, 

and easily admit votes by the yeas and nays. Even if the Houses chose to approve their journals 

less frequently than every day, the availability of daily votes by the yeas and nays on adjourning, alone, should rule out any notion that the founders contemplated any 18th-century analog 

to the ‘‘virtual presence’’ that today might be achieved by proxy or by teleconferencing or by 

discounting incapacitated Members. 

essarily establishing vacancies in their seats. Could the Speaker unilaterally change 

the approach to the constitutional quorum requirement that has been consistent in 

both Houses since 1906? The Parliamentarian acknowledged that the Constitution 

empowers each House to adopt and interpret its own rules and that the House is 

not necessarily bound to retain the approach established by Speaker Cannon’s 1906 

ruling (not appealed) or to maintain consistency with the similar Senate rule, but 

advised that any ruling by the Speaker effecting such a change in approach would 

be subject under rule 1 to an appeal to the full House and, if a record vote were 

had on that appeal, a quorum consisting of a majority of those living and sworn 

would be necessary either to sustain or to overrule the Speaker’s ruling. (Even if 

a ‘‘runaway’’ Speaker were to take the further position that his ruling was not subject to appeal, that ruling of nonappealability logically would be itself subject to appeal). In the absence of a proper quorum among those living and sworn to dispose 

of the appeal, the House would be unable to continue its business. 

The Parliamentarian believed that the Speaker should not be advised to depart 

from the precedents of the House in this area by a unilateral ruling, even under 

catastrophic circumstances tending to demand that the House be able to conduct 

legislative business. Rather, the House should consider—preferably in advance— 

what it might do in the event of such a catastrophe, addressing the contingency by 

a change in the standing rules adopted by the whole House in a dispassionate atmosphere with a proper quorum present. The constitutional advisability of such a 

rules change initially would be for the House, in its collective wisdom, to debate and 

determine by its vote on the proposal. The possible vulnerability of such a rule to 

collateral challenge in federal court would need to be evaluated in light of existing 

case law such as Ballin,10 Michel,11 and Skaggs.12

One must question whether the constitutional latitude noted in the dictum in 

Ballin is wide enough for the House to set a smaller number than a majority of 

Members living and sworn to do business. In section 5 of article 1 of the Constitution, the founders addressed smaller-than-majority quorums. They specified two 

items of business that may be transacted by a smaller number than a majority of 

the House. Those two items are adjourning from day to day and compelling the attendance of absentees. Whether a third item—an item like re-basing the whole number of the House in the wake of a catastrophe—validly may be added to that category without amending the Constitution is a very serious question. 

The holding in Ballin validated Speaker Reed’s noting the actual presence in the 

chamber of Members who chose only to lurk rather than to record their position or 

their presence. Speaker Reed did not find merely that the whereabouts of these 

Members were unknown. Rather, he found that they actually were in the chamber 

of the House observing the proceedings in person. The dictum in Ballin lends scant 

support for the proposition that methods of counting those present may extend beyond the most ordinary connotation of presence, to wit: physical attendance.13

For this reason, if the House were to devise a method of recalculating its number 

of the purpose of computing its quorum that, under specified catastrophic circumstances, departed from its settled living-and-sworn standard, then it would do 

well to focus on physical attendance as the measuring device. In catastrophic circumstances, the exercise could amount to discerning what has become of the House. 

I am grateful for your attention and will be pleased to engage any questions you 

might have. 

STATEMENT OF JOHN SULLIVAN, DEPUTY PARLIAMENTARIAN 

OF THE HOUSE, U.S. HOUSE OF REPRESENTATIVES 

Mr. SULLIVAN. Thank you, Mr. Chairman, members of the committee, I have taken some time to go over the discussion draft very 

closely, and I sense that there will inevitably be questions about it. 

17 

So if it is all right with the committee, I will just make observations on it. 

The CHAIRMAN. Please. 

Mr. SULLIVAN. As I think of it very simplistically, mass incapacitation really creates two primary problems. One is with respect to 

the quorum and the ability of the House to move at all, and the 

other is with respect to representativeness, the need to replenish 

membership. 

The discussion draft as I see it addresses the latter concern, the 

replenishment, only in one way: it would put the House in a position to move forward, for instance, to declare seats vacant, where 

they knew they ought to be declared vacant, and thereby arm the 

Governors with their special election writ authority. But otherwise 

it is focused entirely on the quorum problem. 

The idea in this discussion draft is to establish a procedure that 

will let the circumstances produce a change in the denominator of 

the quorum requirement and let the circumstances largely speak 

for themselves. The method that it chose is to use the ability of 

Members to attend the Chamber as a measure of who exists or who 

is available for duty. 

It sets up a series of hurdles in which the House tries real hard 

to gather a real quorum among the 435-seat House—218—and in 

stages. You don’t move on to the next stage unless a quorum is 

wanting. The first step is that there be revealed the absence of a 

quorum, perhaps on a normal vote by the ayes and nays, if fewer 

than 218 are recorded either yes or no or present. After that, the 

rule for this provisional number might be used to actually produce 

a result. 

The next step that has to be exhausted is the use of one of the 

motions to compel the attendance of Members. One of the things 

that the Constitution allows a number smaller than a majority to 

do in the House, under the Rules of the House, 15 Members can 

dispatch the Sergeant at Arms to round up absentees. 

Mr. FROST. Excuse me. Is there a requirement that there be at 

least 15 Members? 

Mr. SULLIVAN. The motion requires 15 yea votes. So a 15 to 14 

vote, a 15 to 1 vote would do, a 15 to nothing; it could be 15 members in the Chamber. If they voted aye, it would. 

Mr. FROST. If it were fewer than 15 Members, the House could 

not act? 

Mr. SULLIVAN. The Constitution gives the House permission to 

ordain some small number; here the small number that the House 

has ordained is 15. The usual way that you get a vote in the 

House—object to the vote on the ground that a quorum is not 

present, and make that point of order—triggers the yeas and nays 

on the pending question. But it also theoretically dispatches the 

Sergeant at Arms to tell Members you need to get to the Chamber. 

So that level of rounding up Members will be afoot in any event. 

Mr. FROST. If I may interrupt, Mr. Chairman. I apologize. But 

I have spent, as you know, I have spent a great deal of time on 

this issue and thought about this issue a lot. And we are—you are 

referring to rule XX, clause 5(a), I believe. And if we had a situation where there were only six or seven or eight Members remainVerDate Aug 04 2004 23:26 Sep 02, 2004 Jkt 095383 PO 00000 Frm 00023 Fmt 6633 Sfmt 6602 E:\HR\OC\A383.XXX A383
18 

ing here in Washington, or wherever the House would meet, they 

could not invoke this rule? 

Mr. SULLIVAN. That is right. This rule requires exhaustion of— 

in the middle of the discussion draft there is a reference to paragraph (a) or (b); that is, to 5(a) and (b). And under this discussion 

draft, if the House were unable to dispose of the compulsory motion, the machine wouldn’t work. That is right. 

Mr. LINDER. Could a statement be done under UC, so if two people are here they could do it? 

Mr. FROST. So it is only if someone asks for a recorded vote? It 

is important to look at every little piece of this, Mr. Chairman. I 

only want to make one other statement. My concern from the beginning has been public confidence in the actions of the House, 

whatever size that House is, and as to whatever circumstance. I 

think it is essential to the continuation of our democracy that the 

public have confidence in us, whatever size body is acting, that it 

is doing so in the national interest. 

The CHAIRMAN. Your point is obviously a very good one. What 

confidence can they have in a three-Member House of Representatives? I think that is a very fair point to raise. 

Mr. SULLIVAN. So those first two steps, the failure of a quorum 

in the first instance, and the exhaustion of an attempt to compel 

the attendance of Members, sets the stage for the three real hurdles of the process: a staged first lengthy quorum call. There will 

a plan for its length, but some real hard attempt to gather 218. 

The CHAIRMAN. Repeated quorum calls? 

Mr. SULLIVAN. It could be. But it has to span a certain length 

of time to put the Speaker in the position of deciding to enter the 

finding or relay the report or whatever it will end up being. The 

big blank in the middle of the page, pulling the trigger, saying it 

looks like we are going to use this provisional number machine 

that we have adopted in rule XX. And then that, the Speaker’s invocation of the machine, is followed by yet another, probably congruent-in-length, quorum call to see whether the House can get its 

ordinary quorum. 

If this five-stage process goes through to its fruition, then the 

bottom line of the rule is that it cranks out a provisional number 

of the House, some number to use instead of 435. 

Mr. FROST. The bottom part of the fraction, the denominator. 

Mr. SULLIVAN. That is right. And so if, after all of these very sincere attempts to gather as many Members as possible, the House 

is left with 100, then that would be the provisional number of the 

House, and a quorum would be 51. 

It uses the circumstances, the ability of Members to respond, as 

a way of judging what has become of the House. 

The technique that is used here is to employ tools that don’t require a quorum, so we don’t get trapped in a circle. One of them 

is the Speaker’s unappealable invocation in the fourth step, the 

entry of the finding that catastrophic circumstances are afoot. The 

other is the ubiquitous availability of a possible motion to adjourn 

adoptable by a majority of whoever is there. 

That is the chief strength, that is the chief protection in this discussion draft is that—well, first of all, the procedure can’t be triggered accidently. You have to really try to get into this machine. 

19 

It is multi-staged for that purpose. And the ultimate strength is it 

can be aborted simply. It can be aborted during the first lengthy 

quorum call by adopting a motion to adjourn, or wait, even if you 

were to wait and see whether the Speaker were going to make the 

invocation, that same tool is contemplated during the second 

lengthy quorum call. 

The Members could say, we think that we should take a breather 

here. And a motion to adjourn would wind the clock back to zero 

on this whole process. The House would come in on whatever day 

it adjourned to and be in the same position it was before. It also 

is self-sunsetting. At the end of the discussion draft, it says that 

when the membership who are available are enough to make a 

quorum in the real number of the House, whatever that might be, 

then this provisional number lapses. As it is currently configured, 

that sunset is somewhat Draconian because if—let’s say that no 

Members are dead and the actual number of the House to which 

we will return is 435—we would snap back to that when the 218th 

Member arrived. 

But at that point, you would need to maintain perfect attendance 

to maintain a quorum. So one of the rough edges in this discussion 

draft that Members might want to dwell their attention on is 

whether it is too Draconian and whether some other point should 

be the snap-back-to-normalcy point, so as not to leave the House 

in a position where it needs perfect attendance to do anything. 

Obviously the weakness, the biggest weakness in the discussion 

draft is that it has got blanks in it, and one great big blank in the 

middle, and that is—that blank is where the Members would address the potential for pretextual use of the process. 

The ways that we have kicked around to address that, really, 

number two. One is to attempt to specify parameters of catastrophe 

in some way that will allow objective observers to say that that is, 

and that isn’t. And it is a self-reviewable question. 

The other way, and the way that I have spent more time thinking of, so far at least, is to invest in some ministerial agent the 

prefatory role of an arming, cocking the hammer for the Speaker, 

to pull the trigger to go into the second lengthy quorum call, perhaps the Sergeant at Arms, when advised by the Sergeant at Arms 

that catastrophic circumstances are what is causing this problem. 

That is the model that the House used in the so-called snow day 

authority in clause 12 of rule 1. 

It is an interesting contrast. Two of the things that the House 

adopted at the beginning of this Congress to address elements of 

continuity are the emergency recess authority of the Speaker, and 

the authority of the Speaker to shift the convening time of the 

House if there is a problem. 

In the former case, if there is an immediate problem, like suddenly the ventilation system of the House has been infested with 

contagion, if the Speaker is advised of that by anybody—it could 

be his staff, it could be Mr. Frost, for that matter—that immediately arms him with the authority to say that the House will 

stand in recess subject to the call of the Chair, even if a question 

is pending. Normal recess authority can’t be used while a question 

is pending. 

20 

By contrast, the authority for the Speaker to say on Sunday 

night, ‘‘We ought to convene tonight because Washington is going 

to get 27 inches of snow in the morning and I am not sure we are 

going to be able to convene at the appointed time tomorrow morning,’’ to use that authority the Speaker needs a prefatory report 

from the Sergeant at Arms to the effect that there is an imminent 

impairment of the place of convening; that he certifies that the 

House might not be able to convene Monday morning, and it is advisable to convene Sunday night and make some arrangement to 

bridge that snowstorm or that ricin attack or whatever it might be. 

That use of the ministerial agent in rule I is what got me thinking 

about using a ministerial agent as the surety in the middle of this 

discussion draft. 

But another way to go might be a way to specify the parameter 

of catastrophe that would justify the Speaker’s invocation of that 

second lengthy quorum call—— 

Mr. MCGOVERN. What happens if there is no Speaker? 

Mr. SULLIVAN. One of the rule changes that the House adopted 

at the beginning of this Congress was that in the event that a vacancy in the Office of the Speaker, including his inability to exercise his office, not necessarily his demise, then the next person on 

a list—that is placed in a secure location—will be the acting Speaker pro tempore, pending the House’s election of a successor. 

Mr. MCGOVERN. What if you have a situation where, you know, 

there is nobody from the majority party here, and all you have left 

are Members of the minority party? 

Mr. SULLIVAN. What we do at the organization of a new Congress 

where there is no Speaker, is the Clerk takes the chair and recognizes for nominations from the floor to elect a Speaker. 

If there were a case where the list of Speakers pro tempore in 

waiting is exhausted, I think we would ask the Clerk or the successor Clerk to take the chair and entertain nominations for the office of Speaker. 

The CHAIRMAN. From those Members who are remaining? 

Mr. SULLIVAN. Yes. 

The CHAIRMAN. Thank you. Let me—we have obviously begun, 

and we want this to be informal, because we are having a discussion here which we are getting into some very important points. 

Do you want to add anything, Tom? 

STATEMENT OF TOM DUNCAN, DEPUTY PARLIAMENTARIAN 

OF THE HOUSE, U.S. HOUSE OF REPRESENTATIVES 

Mr. DUNCAN. I thought that I would add, very briefly, a historical note on how the House during the Civil War evolved to deal 

with this issue. The 36th Congress had 237 Members from all of 

the States prior to 1861. After that time, and the Southern States 

had seceded, the House in the 37th Congress had only 183 Members, in effect subtracting the former Representatives from the 

Southern States, because as far as the House was concerned, those 

States had not chosen Members to the House and The House had 

no knowledge of the States sending people to Washington unless 

they appeared. 

They effectively reduced the denominator at that time and The 

House treated that as the standard, being chosen and living. That 

21 

1861 ruling laid the groundwork for the rule in 1906. I thought 

that may be useful. 

The CHAIRMAN. Thank you for that. Let me just say that a lot 

of thought has gone into this by a lot of people. There are still a 

lot of questions. As I was listening to your comments, there are a 

few questions I have. Then I want my colleagues, Mr. Hastings and 

Mr. Frost and Mr. Linder and Mr. McGovern, to ask further questions as well. 

We talked about the rule of 15 when it comes to telling the Sergeant at Arms to seek Members who are not present. I am just 

wondering, when has that been utilized in the past? I don’t remember myself—— 

Mr. JOHNSON. It really is a little bit of a relic. Because under our 

rules now, the only business requiring the presence of a quorum is 

pursuant to a vote, and the so-called automatic roll call rule, clause 

6 of rule XX, has its own built-in mechanism. It doesn’t take 15. 

Any one Member objecting requires the Sergeant at Arms to go out 

and round up Members by virtue of the operation of that rule. So 

the rule of 15, while it is there because the Constitution invites a 

rule to be there, the more frequent practice is to utilize the automatic yea and nay vote to, where necessary, tell the Sergeant at 

Arms to go up and round up absentees. 

The CHAIRMAN. We have seen a lot of changes take place on this 

whole issue of doing business and a quorum as it relates to it. We 

know in the past debate could not proceed without a quorum being 

present, and I just wondered what thoughts you have as to where 

we are going on this issue of doing business as it relates to a 

quorum. 

Mr. JOHNSON. Our prepared statement does allude to this evolution. 

The notion that debate is no longer business requiring the adoption of a quorum came into the rules in the 1970s. It was a major 

change to allow the House to conduct its debates without—repeated 

points of no quorum during general debates. There are certain safeguards that allow one point of no quorum in the Committee of the 

Whole during general debate at the discretion of the Chair and one 

during the 5-minute debate but not again until the Chair puts the 

question to a vote. That is the key. Voting is obviously business. 

You cannot deny that a vote is business of the House. 

The CHAIRMAN. What is your interpretation of the way that has 

worked? You just described that as a slightly different definition 

over what it was in years past and that being the ability to compel 

that a quorum was present at any point during debate. Do you 

think that has worked well? 

Mr. JOHNSON. Yes. The House has changed in addition with its 

ability to cluster and postpone votes, but I have observed—— 

The CHAIRMAN. I remember here fighting that in the past; and 

now, of course, it is now part of the rules instruction that was put 

into place. We used to argue—and this was back when I was sitting 

on this side—the notion of having length of time between debate 

on amendments was not a healthy thing and we should compel a 

vote on that amendment following the debate of that amendment, 

rather than doing a clustering procedure. 

22 

Mr. JOHNSON. It is still a compelling argument under certain circumstances. 

The CHAIRMAN. Thank you very much. I appreciate a little vindication there. 

Mr. JOHNSON. So the notion that debate does not constitute business, with closed circuit television and other abilities of Members 

to observe debate, has allowed the House to facilitate its business. 

But I don’t think the House could adopt a rule saying that certain 

votes are not business. 

The CHAIRMAN. You mentioned closed circuit television, so that 

just sparked something else for me. 

A couple of Congresses ago, we got into this big debate about 

what would be tantamount to a virtual Congress and this issue 

of—there were a number of people who came, I remember, before 

us arguing that technology—I come from California, and technology 

is very important issue, the technological changes that we observed, and I spend a lot of my time promoting technological 

changes and advances. Some people argue that we should use that 

technology to allow people to cast votes from their congressional 

districts or elsewhere. 

Part of the question gets to the issue that we are discussing here 

today, and we have successfully beaten that back, talking about the 

importance of interaction. But the question really centers around 

on this issue of incapacity in response to catastrophe. What do you 

think would be a responsible way for us to go in light of these technological changes that have taken place that do create the potential 

for some sort of virtual Congress? 

Mr. JOHNSON. I think footnote 13 in my prepared statement addresses that directly. 

The counterargument is that the Constitution and the Founders 

of the Constitution and Jefferson’s Manual all conceive of the requirement of collegial meeting, of a physical presence and attendance. That is constitutionally based, I don’t think an electronic capability should depart from that. The draft rule is based on securing actual attendance and the documentation—— 

The CHAIRMAN. Obviously, I completely concur with that. I think 

it is a very interesting commentary that as we look at all of these 

technological changes that have taken place over the last several 

decades that the notion that the Framers had of ensuring that 

there be that physical interaction is an important one, and I am 

glad that it is being retained. Mr. Hastings. 

Mr. HASTINGS of Washington. Thank you, Mr. Chairman. 

Thank you for your testimony. It has been helpful and continues 

to be helpful. 

I had some discussion with some of my colleagues off the record 

in a casual way to try to find a level of—since this hearing is on 

incapacitation, let me ask you a couple of questions. In your view, 

the House has the authority to change the denominator; is that correct? We have done that in the past. 

Mr. JOHNSON. That is the first, most basic question here: Does 

the House have that authority absent a constitutional amendment 

conferring that authority? I think there is a compelling argument 

that it does, if only because the collateral challenge to a successful 

House effort in that respect would not be immediate or perhaps not 

23 

successful. So I am not saying it should be a power play, but I 

think, ultimately, the House, as the adopter and interpreter of its 

own rules and given compelling national interest, would be well advised to address a rule of this sort even at the expense of subjecting it later on to a plaintiff who might complain about a law 

enacted during such a session, but in the meantime the Congress 

is here to respond. 

Mr. HASTINGS of Washington. I just wanted to get that directly 

on the record. Because that, to me, is the essence of what we are 

grappling with, the idea about what the definition of incapacitation 

is. 

Mr. SULLIVAN. I think 1906 is a very interesting example on that 

question. What was on the bubble in 1906 was the oath. Nobody 

disagreed that the Speaker ought to back out of the denominator 

a Member who had died and another Member who had resigned, 

but two Members elect hadn’t shown, and what was being decided 

by Speaker Cannon in 1906 was whether those two unsworn Members were or were not in the denominator of the fraction. So he was 

deciding and that House was deciding how to compose the denominator of that fraction at that time. 

I think it would have been just as legitimate for him to decide, 

let us not count bodies, let us count seats. The denominator of the 

fraction is the number of seats apportioned. He could have gone 

lots of ways. I doubt that he could have said it is the Members chosen, living, sworn, and able to bench press 200 pounds, but he 

might have been able to say the number of Members chosen, living, 

sworn and able to answer a call within 96 hours. 

Mr. HASTINGS of Washington. Looking to your attachment, when 

you talk about those 1906 rules, Speaker Cannon’s justification of 

that is he referenced the Senate rules. But he also referenced in 

there in the Senate rules they did not debate the issue of sworn 

or living one or the other. With that in mind, it might be some 

value for us, since this is a huge, huge step in the future, for us 

to put in our rules what the definition or at least have a debate 

as to the rule change, rather than let precedent guide us as to 

sworn and living and so forth. There would be some value for us 

to do that because, Charlie, in your testimony you said that these 

are precedents that are well-founded and that is the way it is, but 

that precedent is based upon an undebatable decision that was 

made in the Senate. So it would at least have value for us to have 

that debate as we pursue this. 

Mr. JOHNSON. I think that debate is absolutely essential and integral to this. You have to have that debate. If you emerge saying 

we don’t want to deal with incapacity, does it make sense for the 

Rules Committee to have a resolution amending the rules of the 

House saying, all right, a quorum is the majority of those living 

and sworn? Is that the residual approach your Committee should 

take if you can’t find agreement in this area? 

It certainly puts into black letter form what has been a precedent 

for almost 100 years. Whether it helps establish the legitimacy of 

a work product by the House or allows people to further question 

the lack of legitimacy if there is not such a quorum because it is 

a black letter rule, Mr. Hastings, I honestly don’t think it makes 

all that much difference. I think the key question is whether you 

24 

want to go the further step and allow a different number; and, if 

you do, I would certainly recommend that it be a rules change, not 

just a reinterpretation by the Speaker. But to maintain the status 

quo and incorporate it as a rules change I am not sure is essential, 

although it may be helpful. 

Mr. HASTINGS of Washington. Well, the reason I say that—and 

I don’t know if it is in your testimony or Professor Dellinger’s testimony, maybe both—suggest that we do this now, to have some debate to ward off some challenges. This one area I think is a bit 

gray, and if we can make that more black and white, it would be 

beneficial to us. That is the reason I say that in that context. In 

other words, if we say by our rules what that definition is, we arrive at it; and we say that before—hopefully, we will never have 

a catastrophe like—then we will have guarded ourselves from 

some. 

Mr. JOHNSON. I can’t disagree with what you said. I just think 

that 100 years of precedent—While I do not necessarily equate 100 

years of precedent with a black letter rule, I certainly give to it 

every bit of weight and would hope that the House will respect the 

Speaker’s ruling because it is precedent just to the same extent 

they would respect it because it is written down as an adopted rule 

each year. 

Mr. HASTINGS of Washington. One last thing. There is always an 

out when you have rules. Essentially, unanimous consent agreements are suspension of the rules, which when we ever get to this 

point, then, of some sort of definition of incapacitation where you 

have a problem that the rules would kick in where a quorum would 

be established, presumably with a smaller number it would be easier to get a UC. You essentially could do business by unanimous 

consent because you are suspending the rules. 

Mr. JOHNSON. Unless a vote of record countermanded that unanimous consent request. I don’t think The House could by unanimous 

consent ignore the constitutional requirement for a majority, but if 

The House acts by unanimous consent and no one objects and there 

is no record to show absence of the quorum, yes, the rules are suspended in every other respect. 

Mr. HASTINGS of Washington. Mr. Frost brought up the issue of 

15 Members. Unanimous consent simply suspends the rules to 

allow some sort of business or activity for a period of time. The UC 

generally has, at least from what I have seen, a short period of 

time to deal with a particular point of business. So we still have 

that option that is available. 

Mr. JOHNSON. There is always the presumption of a quorum 

present when the House starts its daily business, and a lot of 

unanimous consent business and voice voting and even division is 

done clearly without the presence of a real quorum, but that absence is never ascertained. Therefore, the business is legitimate. 

The CHAIRMAN. When I first came here, I was told that under 

unanimous consent you could waive the Constitution. 

Mr. HASTINGS of Washington. Should we put that in our rules? 

That is all I have. Thank you. 

The CHAIRMAN. Mr. Frost. 

Mr. FROST. Mr. Chairman, I want to mention something else, because this was taken up during the deliberations of our task force. 

25 

Because of a quirk in the Presidential succession law as it currently exists, this discussion of what constitutes a quorum of the 

House of Representatives is extraordinarily important. Let me explain. 

Under the current Presidential succession law, if the President, 

Vice President and the Speaker and the President pro tempore of 

the Senate are all killed in a catastrophe and a Cabinet member 

survives, that Cabinet member in the line of succession becomes 

President. However, a subsequently elected Speaker by a reconstituted House of Representatives would bump that Cabinet member 

and become President. So that being able to reconstitute the House 

and pick a new Speaker is very important because that new Speaker could then become President if the top four people in the line 

of succession were killed in a catastrophe. Is that correct, Charlie? 

Mr. JOHNSON. Yes, sir. 

Mr. FROST. And we have not changed that Presidential succession law. Some of us have advocated changing the Presidential succession law to eliminate the bumping rights of a subsequently 

elected Speaker just so you have certainty, assuming that a Cabinet member was sworn, that the Cabinet member would continue 

to serve as President, but that is not the law as it exists right now. 

Mr. JOHNSON. The Judiciary Committee has that jurisdiction 

over such a bill. It would take a bill passed by both Houses and 

enacted into law. 

Mr. FROST. This is not just an academic discussion I would say 

about how to reconstitute the House of Representatives or how to 

make sure there is a quorum in the House of Representatives. Because this reduced quorum House of Representatives, if in fact we 

adopt a rule that permits a reduced quorum, could be selecting the 

next President of the United States in its vote for replacement 

Speaker. 

The CHAIRMAN. Is there any bill on that now? 

Mr. JOHNSON. I think there is an introduced bill. I am not sure 

of the status of it. We think there is a bill that would just eliminate 

the Speaker and President pro tempore, the question being whether they are officers within the meaning of the Constitution. The 

Constitution says Congress may by law provide which officers of 

the United States may succeed, and that bill takes them out. I 

think that is the only bill as we sit here, but there may be others. 

Mr. FROST. But the point is Congress has not acted on that. So 

the Presidential succession law as it exists right now is that a new 

Speaker selected by a House of Representatives of diminished size 

under certain circumstances would become President of the United 

States. 

Mr. JOHNSON. Yes, sir. 

The CHAIRMAN. Mr. McGovern. 

Mr. MCGOVERN. Let me just ask a couple of questions. 

On this rule, the 15-person rule that you had talked about before, where if somebody were to call a quorum vote 15 people would 

have to be here, and you were asked what if there weren’t 15 people here, and Mr. Linder said somebody could ask unanimous consent and then the process could move forward. If there were 12 

people here and one of those 12 asked for a vote of no quorum, does 

everything kind of stop? 

26 

Mr. SULLIVAN. Yes. The House is able to do only two things when 

it lacks a quorum. 

Mr. MCGOVERN. Isn’t that really a potentially significant issue? 

I can imagine a situation where there were 10 people here and let 

us say of the 10 people nobody in the leadership of either party is 

here and somebody becomes concerned about not just can we do 

this but if we can’t move ahead will anything we do here have any 

credibility? 

Mr. SULLIVAN. That is a serious issue, and I think the Members 

may decide that that second of these five hoops ought not be in 

there for that reason. 

Mr. JOHNSON. But the point I tried to make earlier was, while 

that rule is in place, which says, in the absence of a quorum, a majority comprising at least 15 Members may compel the attendance 

of absent Members, that the absence of a quorum is only determined when a vote is in progress under our current rules. The 

House does not have separate ascertainments of quorum for the 

most part during debate. 

Mr. MCGOVERN. But somebody could ask for a vote; right? 

Mr. JOHNSON. Yes. But then the automatic rule of The House in 

clause 6 of rule XX says that when such an automatic vote is in 

place, then the Sergeant at Arms is required, under the operation 

of that rule, to gather absentees. So you don’t need 15 members 

telling him to do that. 

Mr. SULLIVAN. The reason why it remains a problem under the 

discussion draft is that the first hoop is failure of a quorum at all, 

and the second one is the disposition of a specific motion, not the 

automatic dispatch of the Sergeant at Arms on the yea and nay 

vote, but rather the specific—a motion under paragraph (a) or (b) 

has been disposed of. So the discussion draft may be a little bit too 

energetic on that point. 

Mr. MCGOVERN. But it is an issue that, obviously, we have to 

think about some more. 

Just one other question. The chairman talked about being from 

California with all the technology and stuff. I didn’t know there 

was a lot of technology in California. I thought it was all in Massachusetts. 

The CHAIRMAN. We are happy that you have some there, too. I 

support it in Massachusetts as well as in California. 

Mr. MCGOVERN. But the other—when we are talking about incapacitation, you could have a situation where Members are home 

and are unable to get together. I mean, it could be a breakdown 

of our transportation system. There could be all kinds of things 

going on where it becomes impossible for people to get from where 

they are to a place where they can meet together. 

I guess one of the concerns would be that if—let us say you had 

15 people that were able to get together in Washington, other 

Members who weren’t dead but couldn’t get here couldn’t be part 

of anything and couldn’t be part of any process, whether or not that 

could be the basis to say we are going to do the House business 

with 15 people. Everybody else, too bad. I think that would raise 

some serious issues about the credibility of what was going on 

here. 

27 

So he was talking about technology. At least that would be one 

kind of issue that might be worth talking about. I understand the 

reason—the concerns against it, but the idea that somehow we 

would be able to function by using technology, given the fact that 

Members may technically be incapacitated because they can’t get 

here but they are still alive and they still represent constituents—— 

Mr. JOHNSON. It is a very valid observation. The definition of catastrophic occurrence and the determination of it by presence or absence would be dispositive. These Members were just isolated but 

certainly willing and able to try to get here or wherever. 

The CHAIRMAN. If the gentleman would yield, the only comment 

I would make on that is there is a grand total of 537 federally 

elected officials, the President and Vice President, Members of the 

House and the Senate; and the Sergeant at Arms would clearly 

have the ability to use virtually any resources of the Federal Government whatsoever I believe in his quest to get Members here. So 

when we talk about the need to—I am sure you can talk about 

problems of breakdown of the transportation system and other 

things, but I think that there are extraordinary means that are 

available for use of dealing with that. 

Mr. FROST. If the gentleman would yield, while this is—I don’t 

believe this would actually occur under our current system, there 

is at least the possibility of—— 

The CHAIRMAN. We are hoping that none of this will occur. 

Mr. FROST. There is at least the possibility of rival Congresses. 

We have a long history in the south of having rump conventions. 

This is a serious issue. You may remember in 1964 the State of 

Mississippi sent competing delegations to the Democratic National 

Convention and the question was which delegation would be seated. 

Now the question is, what happens if you had 15 or 20 Members 

of Congress who were off at some location? Maybe they were attending Aspen Institute or something. I won’t get into that in great 

detail, but they were off at some remote location and they decided 

that they were the Congress and that you only had five or six people somewhere else, maybe here in Washington or some other location. I don’t know how you deal with that. 

What happens, Charlie, if you had competing groups of Members 

attempting to constitute themselves in different locations and act 

as the Congress? 

The CHAIRMAN. And contemplate the Aspen Institute running 

the U.S. Government. 

Mr. JOHNSON. In 1965, there were competing candidates from 

Mississippi to the House who filed election contests; and the House, 

by judging the qualifications of its Members, decided to seat those 

who had the certificates, but it went through an examination in 

each—I think four or five of the districts. But if two sessions suddenly materialized, the proper place would be where the Congress 

itself has established that Congress meet. Congress can only meet 

elsewhere than D.C. if two Houses agree. So a rump session without preauthority by the two Houses I don’t think would be considered a valid session of the House under Article 1, section 5 of the 

Constitution. 

28 

Mr. FROST. Even if it were a larger group that convened at an 

agreed-upon place, the agreed-upon place is either here or someplace else. If this building were destroyed, it would be someplace 

else. 

Mr. JOHNSON. This Congress on opening day for the first time 

gave authority of the two Houses to meet elsewhere than in the 

seat of government. So if now the two Houses adopted a concurrent 

resolution, the House could meet elsewhere. 

Mr. FROST. Are we required to adopt a concurrent resolution permitting that Congress set forth an alternative location? 

Mr. JOHNSON. Under the Constitution neither House can adjourn 

for more than three days nor to any other place than the seat of 

government without the consent of the other House. That is why 

on opening day a concurrent resolution was adopted, the two 

Houses saying that either House can adjourn to meet at another 

place and then the House rule allows its Speaker or acting Speaker 

to convene the House in another place. But any rump group not 

acting under that authority I don’t think would be considered a 

valid meeting of the House. 

The CHAIRMAN. Let me just say that the discussion draft is going 

to continue to be discussed. You all have been very helpful in providing us with a lot of insight, and one of the things that we found 

from—at these discussions that we have had is that, just as we 

pursue clarification, more questions arise, and I think that today 

is no exception to that. 

We do appreciate the attempt that we are going to make in 

bringing about a resolution to some ongoing questions. We thank 

all of you for the time and effort, and we will continue to talk about 

this in the days and weeks and months and years to come. 

Thank you all very much and thanks to my colleagues for your 

patience here. 

The CHAIRMAN. Professor Dellinger, we are very happy to have 

you as our constitutional expert, and we are pleased to have your 

insight and thought on these issues. We know that you were Solicitor General to President Clinton. The president of my alma mater 

is dean of your law school. Pamela Gann is a good friend of mine. 

Let me say, as I have to the parliamentarians, your prepared remarks will appear in the record in their entirety; and we welcome 

your testimony. 

Mr. FROST. Let me add that my oldest daughter is a graduate of 

the University of North Carolina at Chapel Hill, and they have 

spirited contest. 

STATEMENT OF HON. WALTER DELLINGER, DOUGLAS B. 

MAGGS PROFESSOR OF LAW, DUKE UNIVERSITY, AND 

FORMER ACTING SOLICITOR GENERAL OF THE UNITED 

STATES 

Mr. DELLINGER. Chairman Dreier and ranking members of the 

Committee, in October of 1993 I was confirmed by the Senate to 

head the Office of Legal Counsel, and shortly thereafter I asked my 

predecessors in that office—all of the ones who were around were 

from the other party, but I asked them to meet with me in the secure facility at the Justice Department and got all of them a oneday security clearance at the highest level to tell me what they 

29 

thought I really needed to know that wasn’t in the published opinions of the OLC. And very graciously Ted Olsen, Bill Barr, Tim 

Flanagan, and Chuck Cooper all spent a day with me bringing me 

to where I needed to be. 

One of the first things they said was, do you have a book, in case 

the President is incapacitated, on everybody’s desk? And I said I 

do not, and in change of party administrations these things often 

get lost. And I realized that I needed a book that was on the desk 

of the Attorney General of the White House Counsel, the Chief of 

the Staff for the President, Chief of Staff of the Vice President, that 

told everybody exactly what to do and what sequence. The Secretary of the Cabinet shall convene the Cabinet. 

It became quite clear that death was much less of a problem 

than incapacity of the President and the uncertainty that accompanies a President who is incapacitated. Until we worked through 

that process, I woke up many mornings at 4 a.m. thinking this is 

my responsibility, and if I hear at 5 o’clock that something has 

happened to the President and no one knows who is supposed to 

do what, then it is my burden, and once I had those books on 

everybody’s desk, I felt better. 

So I appreciate what the Committee is doing to look at this issue 

in light of 9/11 and to understand that we need to do this. 

Basically, there are—if there is widespread incapacity of House 

Members, basically, one of three things has to happen. Either the 

House will be unable to act at all; or the House will operate with 

temporary Members appointed in some fashion, stand-in Members 

to fill out; or the House will act through a reduced number of Members, which would have the advantage that those people would 

have been elected from their districts or with the disadvantage that 

they might be relatively few in number. Those are the three 

choices. 

I think not only is the first one of the House unable to act unthinkable, it also would not happen. The country in those dire circumstances would be ruled in some form or fashion, even if it were 

by Presidential decree. There would have to be a House. This is the 

body that shares responsibility for the common defense, for taxing 

and spending, for raising and supporting armies, for declaring war. 

These are matters that must be taken care of in the event of a crisis of that magnitude and would be taken care of. 

So we are realistically talking about whether to operate with 

temporary Members or to operate with a reduced number. 

You have taken a very positive step by moving forward to try to 

have elections as soon as practicable, and you all have debated 

what is as soon as practicable, but it is clear that that is the best 

device. The question is, what do we do in the interim? 

The reason I think it is worth considering whether to operate 

with fewer Members—and I will mention that briefly before I discuss why I think it is constitutional to do so, why I think the courts 

are not likely to invalidate it, and finally why I think there needs 

to be a bipartisan consensus before we take such a step. I think, 

first of all, that it is presently the result we have when there are 

a large number of deaths. We would have, everybody knows, under 

the present rules a House which would operate with very few Members. Given the alternatives of rushing in temporary replacements 

30 

or having the fewer numbers operate, I think there is a case to be 

made for the fewer numbers. 

The decision of who those would be will be made either by the 

Lord or by chance, depending upon one’s faith, but they would not 

be representative of the whole country, but they would have been 

elected by the people in districts in a random way, and I believe 

those men and women would step up to their responsibilities, no 

matter how few they were, until the House was replenished by 

elections. They would be experienced. 

It is not the worst—the horror of a very small number is not as 

great as we think. The first Congress consisted of 65 House Members and 26 Members of the Senate. They did, of course, represent 

the whole Continental United States, but it was a smaller number, 

and they passed the Judiciary Act under which we continue to be 

basically be ruled. 

I share the chairman’s reluctance about amending the Constitution. Edison once said, never do electrically what you can do mechanically. If you can do it in a simple way, do it; and it also has 

the advantage that—— 

The CHAIRMAN. Is that Edison or Madison? 

Mr. DELLINGER. Edison. Madison believed the Constitution 

should be amended only rarely. 

The question was put I think very well by Speaker Cannon in 

1906 when he said that he looked at the provision and he said the 

Constitution specifies that a majority of each House shall constitute a quorum to do business. 

This brings to the forefront the question of what constitutes the 

House, what constitutes in a sense the denominator of which the 

Members present in the Chamber are the numerator, what constitutes the denominator. Now there is a very good argument that 

the constitutional rule should have been that it is 435 or whatever 

the full membership is, that that is the House, is the number 435, 

regardless of resignations or deaths or whatever. If the House had 

adopted that rule, the courts and I think scholars would have said 

that is one of the constitutional choices to determine what is the 

House. 

As the chairman noted, the House has had several different 

views of what constitutes the House; and now it is the chosen, 

sworn, living Members whose membership has not been terminated 

by resignation or action of the House. Could the House choose a 

rule that would exclude from the denominator incapacitated Members? 

Let us first think about why no Speaker or parliamentarian has 

done that. They haven’t done that in ordinary times because it 

doesn’t make sense to impose that kind of subject judgment on the 

Speaker or the parliamentarian. 

The nice feature of the existing rule is it is quite objective. You 

can count the people there and the people who are dead and you 

can count who is resigned and you know what one more than half 

is, so you have got an objective way to determine a quorum. But 

it is really for convenience that we don’t do that. You could eliminate the small number of incapacitated Members in ordinary times, 

but it is not worth the debate over doing it. 

31 

I think that in the event of an extraordinary catastrophe it is 

within the power of the House to say we have a different House 

now than we did the day before yesterday. A House that has been 

decimated by catastrophic attack where we have hundreds of Members who are incapacitated, it is a different House, and we are 

going to have a quorum rule that says a majority of what is now 

the House decimated by incapacitated will be—of that it would be 

a majority of doing business. 

I think there is a great advantage to adopting a rule now if we 

can get really widespread and bipartisan agreement on it, because 

you are acting now behind what one of the philosophers calls the 

‘‘veil of ignorance.’’ You don’t know whose party is going to be benefited, whose faction is going to be burdened by this. You don’t 

know. 

What we really want to ensure in that time, as I think Mr. Frost 

and the chairman said, is legitimacy. We want the country to think 

that the actions of the government at this time are legitimate. If 

you adopt a rule now, even though there could be debate about 

whether it is the validity of the rule, if you adopt the rule and the 

Congress then—the House then acts according to that rule, you 

have got a lot of legitimacy that you wouldn’t have if you made up 

a rule on the spot. 

We have an agreed-upon way of doing this. We don’t know what 

the party membership would be, who was left, so this is how we 

agree to do it. So I would agree that it be done. 

I think that the adoption of such a rule, if it were to be challenged now that no one would have standing and a challenge would 

not be right, I don’t believe that a Member could challenge the 

rule. 

I should note that I argued Raines v. Byrd on behalf of the 

United States, in which the Court, 7 to 2, rejected, standing on behalf of Senator Byrd and Senator Moynihan who challenged the 

line-item veto. It was later challenged by someone who didn’t get 

a benefit that had been voted by Congress. 

That is the point in which after the fact when the legislation goes 

into effect, and someone who is charged with a crime was denied 

a tax benefit as a result of this smaller Congress will challenge the 

validity of that, and the courts—it certainly would have standing, 

and the courts would adjudicate it. But in my view, the tradition 

is that, now, that they would defer to the resolution made by Congress, rather than making that resolution themselves. 

There is some doubt caused by Bush v. Gore whether the court 

was willing to step in with respect to a matter some of us thought 

committed to Congress when it exercises its function of counting 

the votes, and a court might adjudicate in order to approve, in 

order to give some rubber stamp to the validity of it. 

Here is the issue about adopting a rule now. There is understandable concern—given the sort of nature of the partisan level of 

confrontation we have experienced in the recent past, there is some 

concern if you adopt a rule now it will be invoked in something 

other than this catastrophic circumstance that we are all talking 

about, that a Speaker will declare the existence of a catastrophe. 

That is a genuine worry on the one hand. 

32 

Just saying that there has been a catastrophe, that is a word we 

often use, unfortunately, in our public life. People on both sides of 

the most contentious issues will say it is a catastrophe if the other 

side prevails. There is a loosening of that language. 

So I would think what one would want to do to make this rule 

palatable is to ensure that you really expanded the definition of the 

trigger, that it has the incapacitation of a large number of Members built into the rule and ideally in my view would have some 

sort of bipartisan trick. 

I fully realize that no Speaker, past or present, wants to share 

power. It is not the tradition of the House. There is more of a tradition in the Senate. But Speakers of whatever party do not like to 

act in conjunction with the concurrence of some other Member of 

the House, and no Speaker is eager to see a precedent established 

whereby the Speaker with the agreement of the ranking member 

of the other party, et cetera. 

There may be ways around that. Because I think they would be 

much more comfortable if one thought you are going to be doing 

this only when it is a genuine emergency of the 9/11 variety and 

when there would be bipartisan agreement that we should go to 

this radically reduced House. 

Perhaps one way to do it is to allow the Speaker to make the declaration but that a precondition of that Speaker’s exercising that 

power is some form of bipartisan agreement. I think you are better 

suited than I am to figure out how that should be done, but I think 

it is the best way to do it. 

Once we work out the legislation you all have been considering, 

we will try to replenish the House with elected Members as soon 

as possible. What to do in the interim, I think there is a lot to be 

said for doing it with a reduced number of Members of Congress, 

rather than amending the Constitution to bring in temporary replacements, which seems to me quite awkward, and that it is best 

now done by rule so that the country will be assured so, though it 

is 78 Members who are exercising this power, that was the rule 

that was agreed upon in a bipartisan understanding in 2004, and 

those 65 Members will act—or 75 or 58, however many there are— 

will act until their colleagues are no longer incapacitated or, in the 

case of deaths, elections replenish the House. 

That is basically the essence of my statement. 

The CHAIRMAN. Great. Thank you very much. It is very helpful, 

and I appreciate those thoughts. 

[The statement of Mr. Dellinger follows:] 

PREPARED STATEMENT OF WALTER DELLINGER

Mr. Chairman, and members of the Committee, thank you for inviting me to appear today. My name is Walter Dellinger. I am the Douglas B. Maggs Professor of 

Law at Duke University; I am also a partner and head of the appellate litigation 

section of the law firm O’Melveny & Myers. The attacks against our nation on September 11, 2001, made clear the need to address structural vulnerabilities that 

could impair the functioning of the national government after a major terrorist attack or other catastrophe. I am glad that this committee, and the entire House of 

Representatives, have taken their responsibility to address these issues. I hope that 

my perspective as a professor who has studied the Constitution for over 30 years, 

and a lawyer who has advised past presidents and attorneys general on constitutional issues, will be of value as this committee continues its important work to ensure the continuity, effectiveness, legitimacy, and representatives of the legislative 

branch in the aftermath of a major attack or disaster. 

33 

In preparing to testify today, I have studied the relevant constitutional provisions, 

court cases, and historical evidence on the Constitution’s quorum requirement and 

the House’s rulemaking power. I have also studied committee staff’s drafts of proposals amending the quorum requirement in House Rule XX. Finally, I have reviewed other proposals aimed at ensuring continuity in government, such as the 

Continuity in Representation Act of 2004, H.R. 2844, and various proposals for constitutional amendments. I believe that an amendment to the House Rules’ quorum 

requirement not only would be constitutional, but also will be a vital part of any 

solution to the continuity in government problem. I believe that the draft rule 

amendments I have seen go a long way toward filling that role, but fall short in 

certain respects. More specifically, my conclusions, discussed in detail in the remainder of these remarks, are that: 

• First, the Constitution would permit the House to adopt a rule providing that 

a majority of non-incapacitated members shall constitute a quorum to do business 

in the event of a major catastrophe imperiling the ability of the House to otherwise 

function. The time to adopt such a rule is now, in advance of any possible catastrophe, and when the rule will have the added legitimacy of having been debated 

by the entire House, and adopted in the clear absence of partisan motives. Whether 

such a rule change is a better solution than any particular constitutional amendment is a question I express no position on today. But at the very least, such a rule 

is advisable as a stopgap measure while possible constitutional amendments addressing the question are debated by Congress and by the States. 

• Second, I do not believe that the propriety of such a rule change would be justiciable by the courts. Rather, lawsuits challenging such a rule will likely be dismissed by the courts as nonjusticiable for lack of litigant standing, for lack of ripeness, or because such cases would present a political question constitutionally entrusted to Congress itself rather than to the courts. 

• Third, although the courts would have no rule in judging such a rule, the Constitution imposes on the House a solemn duty to make sure that any rule change 

is not only capable of addressing the threats at issue, but also faithful to the principle of majority rule, congruent with the Framers’ constitutional plan, and precise 

enough to prevent the manipulative use of the rule in situations for which it was 

not intended. Because the goal of the rule change is to safeguard the House’s ability 

to function as a representative body when external events have rendered the House 

otherwise unable to act, the rule must be broad enough to include incapacitating 

events that we might not now be able to forecast. But a rule aimed at safeguarding 

our country in extremis ought not to be drafted in a way that would permit its use 

by factions aiming for undemocratic results—constitutional legitimacy demands that 

the rule be narrowly tailored in order to prevent abuses. The proposals I have seen 

so far, unfortunately, do not quite succeed on that count. As a result, I recommend 

that the Committee continue to work on drafting a rule change that would be consistent and not subject to partisan manipulation. More specifically, I recommend 

that such a rule (i) have a clear and precise definition of the extraordinary circumstances in which external events incapacitate large numbers of Representatives, 

triggering the rule’s taking effect; (ii) take effect only upon bipartisan recognition 

of those triggering circumstances; and (iii) provide that the extraordinary quorum 

rules cease operation within a definite time period, unless the emergency circumstances are periodically recertified by that bipartisan authority. 

I. The Constitution permits the House to address the quorum issue by rule 

The quorum requirement comes from Article I, § 5, cl. 1 of the Constitution, which 

provides that: ‘‘Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to 

do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under 

such Penalties as each House may provide.’’ 

The House’s rulemaking power comes from clause two: ‘‘Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, 

with the Concurrence of two thirds, expel a Member.’’ 

Some terms in the quorum clause are clearly not open to debate. When the Constitution requires a ‘‘majority,’’ it seems clear enough that that means, as the dictionaries put it, ‘‘more than half.’’ Other terms are more fluid and open to interpretation. The question is, who is counted towards the majority, and a majority of what 

number. To determine whether a given number of Representatives constitutes a 

‘‘majority,’’ we calculate a fraction, with a numerator and a denominator. 

34 

The rule establishing the ‘‘numerator’’ for the quorum determination has changed 

significantly over the years. For many years, the House did not count towards the 

quorum members present in the Chamber unless they answered to a roll call—a 

practice changed in 1890 by Speaker Reed, who directed the Clerk to enter on the 

record the names of Members present but not voting, and count them towards the 

quorum. This practice was formalized on February 14, 1890, when the House adopted a rule that: ‘‘On the demand of any Member, or at the suggestion of the Speaker, 

the names of Members sufficient to make a quorum in the Hall of the House who 

do not vote shall be noted by the Clerk and recorded in the Journal, and reported 

to the Speaker with the names of the Members voting and be counted and announced in determining the presence of a quorum to do business.’’ That rule was 

upheld by the Supreme Court in the 1892 case United States v. Ballin, and today’s 

House Rules persist in the practice. 

The proposed rule considered today concerns the ‘‘denominator’’ in the quorum determination—what constitutes the House from which a majority must be present. 

Here, too, historical practice has varied. Between 1861 and 1891, the House had a 

practice of counting all Members chosen and living as the body from which a majority must be present. Later rulings revised the criteria so that a quorum would consist of a majority of Members who had been elected and sworn-in, and had neither 

died, nor resigned, nor been expelled. I believe that each of these methods of counting a quorum is constitutional, as would be the proposal to include in the denominator only Members who are not incapacitated, in the event of a serious catastrophe 

threatening congress’ functioning. In other words, the Constitution is flexible 

enough to permit a number of different formulas for determining a quorum—and 

the fact that Congress is empowered by the rulemaking clause to adopt a relatively 

strict version of the rule does not mean that it is prohibited from adopting a looser 

version. 

This is not to say that there are no limits on the House’s ability to define what 

constitutes a quorum. As noted before, the Constitution’s use of the term ‘‘majority’’ 

is clear and unambiguous. No matter what the House chooses to make the numerator and denominator for the quorum inquiry, it is obvious that the House could 

not decide that some fraction less than 50% was a majority. Nor, I submit, could 

the House decide to exclude from the denominator properly sworn members entitled 

to vote who have chosen of their own free will not to attend. This is because the 

Constitution envisions a different method of reconciling such Member non-cooperation with the House’s need to do business: the Constitution empowers the non-majority of the House that is present to ‘‘compel’’ the absent Members’ attendance— 

a power that would be unnecessary if the House could simply count those absent 

members towards the quorum’s numerator or exclude them from the denominator. 

Similarly, it would be unconstitutional for the House to adopt a rule that eviscerated the quorum requirement by defining it out of existence. For instance, a rule 

that chose for the denominator the number of Members already present in the 

Chamber would be illegitimate. Such a rule would mean that there was always a 

quorum—making a mockery of the Framers’ plan that there would be times when 

the failure of a quorum did indeed prevent the House from doing business. 

But within these restrains, the Constitution should be read as conferring a fair 

amount of discretion on the House to determine from whom the quorum must be 

drawn. It would be fine for Congress to decide that a quorum consists of a majority 

of the statutorily-provided number of Representatives (currently 435). It would be 

equally legitimate for the House to exclude from the denominator those Representatives who are dead, those who have resigned, those who have been expelled, or, as 

we are discussing today, those who have been rendered temporarily or permanently 

unable to discharge their duties as a Representative. Article I, Section 5 simply is 

not so specific as to require or prohibit any one of these ways of defining the 

quorum. 

There is another reason why the Constitution must be read as permitting this 

kind of rule change. The legislative powers that Article I vests in Congress would 

be absolutely critical for our nation to respond to the type of calamity that the rule 

change is designed to address. It is Congress that has the constitutional power to 

‘‘lay and collect Taxes,’’ and spend and borrow money; to ‘‘define and punish Offenses against the Law of Nations’’; to ‘‘raise and support Armies’’ and ‘’provide and 

maintain’’ the Navy; to legislate regarding ‘‘the Militia’’; to suspend the writ of habeas corpus when ‘‘in Cases of Rebellion or Invasion the public Safety may require 

it’’; and, of course, to ‘‘declare War.’’ Depending on the type and scope of the catastrophe at issue, the immediate exercise of some or all of these powers might be absolutely necessary to provide for the safety of the citizenry and for the very continuVerDate Aug 04 2004 23:26 Sep 02, 2004 Jkt 095383 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 E:\HR\OC\A383.XXX A383
35 

ation of republican, constitutional government itself. It is simply inconceivable that 

a Constitution established to ‘‘provide for the common defense’’ and ‘‘promote the 

general Welfare’’ would leave the nation unable to act in precisely the moment of 

greatest peril. No constitutional amendment is required to enact the proposed rule 

change, because the Constitution as drafted permits the Congress to ensure the 

preservation of government. 

The Constitution’s framers recognized that it was just as important to empower 

the federal government to act properly as it was to prevent the government from 

acting improperly. As Alexander Hamilton put it in the Federalist Papers, ‘‘[t]he 

public business must in some way or other go forward.’’ We must not forget ‘‘how 

much good may be prevented, and how much ill may be produced, by the power of 

hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.’’ 

Allowing the Congress to simply cease functioning in the event of a major catastrophe would serve not a single structural interest of the Constitution. It would not 

serve federalism interests, because even a congress much smaller than that authorized by law would represent the nation’s diverse geographic interests better than 

no Congress at all. It would not serve the separation of powers, because even a 

greatly diminished Congress would serve as a better check and balance on the executive branch than would no Congress at all. (Indeed, the existence of a functioning 

Congress might well prove critical to the very survival of the executive branch: in 

the event of an attack that harmed the President, Congress might be called upon 

under the Twenty-Fifth Amendment to determine who is to exercise the powers of 

the presidency if there is a dispute over the President’s own capacity to discharge 

the powers and duties of his office.) Finally, a nonfunctioning Congress would not 

serve the cause of individual rights, because, in the absence of congressional authority, the country would presumably have to convert to some form of martial law— 

a kind of government especially unlikely to respect due process and individual 

rights. In short, whether or not a reduced quorum is desirable in normal circumstances, it is absolutely vital to the constitutional scheme when the alternative 

would be the total incapacitation of the Legislative Branch. 

In fact, a functioning House is so critical in times of emergency that, one way or 

another, it would be necessary, if much of the House were incapacitated, for the remainder to find a way to continue to function. In the event of a major catastrophe, 

the House will have to find a way to fulfill its duties, whatever you decide today. 

One of the main points I wish to make is that if disaster does strike, a diminished 

House of Representatives would have far more legitimacy operating under an emergency quorum rule that had been decided in advance than it would operating under 

a quorum rule devised ad hoc under emergency conditions. A rule adopted now will 

have the legitimacy of having been debated and approved by the full House, operating under traditional quorum rules—it will therefore escape the bootstrapping 

problem that would occur if a diminished House tried to change the quorum rules. 

Moreover, a rule adopted now, in advance of any emergency, would gain the legitimacy of having been adopted from behind what John Rawls called a ‘‘veil of ignorance.’’ In other words, a rule adopted now will be perceived as neutral and fair, 

because it will have been adopted by a Congress that did not know which party, 

which faction, or which individual representatives would be empowered by the rule’s 

eventual invocation. This will especially be the case if, as I suggest in Part III 

below, the rule adopted is clear and precise about the triggering mechanisms necessary for the Rule’s invocation. That way, whoever is in the leadership when the 

rule is invoked will benefit from the legitimacy of having applied a clearly applicable 

law, rather than having made merely a debatable judgment call. 

Certainly, changes to the quorum requirement could also be accomplished by constitutional amendment. Such an amendment either could address the quorum calculation directly, or could ensure the presence of a quorum by providing for temporary replacements of incapacitated members. There have been a variety of proposals for constitutional amendments, including one by the bipartisan Continuity of 

Government Commission, a joint project of the American Enterprise Institute and 

the Brookings Institution. Although I have studied some of these proposals, I do not 

think it is my place to comment on them here. What I can say is that the constitutional amendment process is invariably slow, and that waiting for a constitutional 

amendment would leave us vulnerable to potential lapses in the continuity of government for too long a time. Even if the House believes that a constitutional amendment is the best way to solve the continuity in government problem, it makes sense 

to act now with a change to the House rules, to provide for the continuity of government until a constitutional amendment can be proposed and ratified. 

36 

II. Changes to the quorum rule would be nonjusticiable 

When we say that a case is nonjusticiable, we mean that the federal courts are 

jurisdictionally foreclosed from hearing the case under Article III of the Constitution, either because the dispute is not the kind of ‘‘case’’ or ‘‘controversy’’ to which 

the judicial power extends (usually where the dispute is too abstract or hypothetical), or because the dispute involves the sort of ‘‘political’’ question that the Supreme Court has decided ought to be resolved by the legislative or executive branch. 

I believe that, if the House adopts a rule that changes the method of calculating 

a quorum when extraordinary circumstances render much of the House incapacitated, lawsuits challenging the constitutionality of the rule change would be dismissed for lack of jurisdiction. 

There are two situations in which litigants might attempt to challenge the constitutionality of such a rule. First, some plaintiffs might attempt to sue after the 

rule’s passage but before it has ever been invoked. Under current Supreme Court 

precedent, no plaintiff (including Members of Congress who might wish to sue) 

would be held to have legal standing to raise the issue in such circumstances. Until 

the rule is invoked to find a quorum present where one would otherwise not exist, 

the propriety of the rule would be only an abstract issue ineligible for judicial decision. Later on, a court might be called upon to decide the constitutionality of the 

rule change if and when the new quorum rule was actually used to pass laws for 

which a quorum would otherwise have been absent, and a litigant affected by such 

a law argued that the law was not properly enacted. Even then, the rule would 

probably be held to present a nonjusticiable political question, and the case dismissed. 

For a plaintiff to have standing to litigate, the Supreme Court has said, the plaintiff must have an ‘‘injury in fact’’—that is, ‘‘an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not ‘‘conjectural’’ or ‘‘hypothetical.’’ ’ ’’ With only one exception not relevant here, the Supreme 

Court has held that a litigant has standing only to complain about an injury that 

is ‘‘particularized’’ as to that plaintiff, and affects him ‘‘in a personal and individual 

way.’’ It should be obvious why I believe this requirement will not be satisfied by 

a plaintiff complaining about the mere passage of a rule amendment. The fact that 

Congress passes a rule change that would not take effect except in certain catastrophic and unlikely situations does not presently work a concrete harm to anybody’s legally protected interests. The passing of such a rule change does not put 

anyone in jail, make anyone richer or poor, or inhibit the exercise of anyone’s constitutional rights. A plaintiff cannot be granted standing merely to vindicate his abstract interest in the legality of congressional rules; a series of cases reject basing 

standing on such ‘‘generalized grievances’’ as citizens’ shared interest that their government follow the law. And to the extent that there is any injury at all to a particular plaintiff stemming from such a rule’s passing, the injury is the very essence 

of ‘‘conjectural’’ or ‘‘hypothetical.’’ Such a plaintiff would have to complain that he 

or she would be harmed if (i) a catastrophic triggering event occurred, and (ii) the 

House decided to invoke the reduced quorum rule, and (iii) the House then passed 

a bill which it would otherwise have been prevented from passing by lack of a 

quorum, and (iii) the bill was thereafter enacted into law (by concurrent Senate passage, and then either a presidential signature or a congressional override of presidential veto), and (iv) the bill substantively disadvantaged the plaintiff. An injury 

contingent on so many unlikely happenings is far too speculative to confer standing. 

At the very least, a court is likely to conclude that challenges to the rule change 

are not ‘‘ripe’’ until the rule has actually been invoked and used to pass laws. 

A court is just as likely to discuss a case challenging the rule change if the case 

is brought by a Member of the House complaining that the rule change infringed 

his or her prerogatives as a Representative. In Raines v. Byrd, the Supreme Court 

dismissed on standing grounds a lawsuit brought by Members of Congress challenging the constitutionality of the Line Item Veto Act. The Court noted that a prior 

case had upheld a congressman’s standing to challenge his exclusion from the House 

of Representatives (and his consequent loss of salary). But, the court added, that 

case did not provide precedent for finding standing for legislators who were not ‘‘singled out for specially unfavorable treatment as opposed to other Members,’’ and did 

not claim to be ‘‘deprived of something to which they personally are entitled.’’ The 

Court in Raines also noted another previous case which had found standing for 

members of a state legislature who alleged that their vote on a particular piece of 

legislation had been ‘‘completely nullified’’ by an allegedly improper procedure; 

there, the Court said, standing was justified because the legislators alleged that 

under a proper procedure, their votes ‘‘would have been sufficient to defeat . . . 

37 

1 Raines did leave open the possibility that the House itself may have standing to litigate (or 

to authorize certain members to litigate) disputes threatening its institutional power. But since 

the House also has the ability simply to change any rule it finds offensive, it is unlikely to authorize a member to challenge on its behalf a rule that the House has adopted and refuses to 

change. Even if the House did attempt to authorize a member to litigate such a case on its behalf, the case would almost certainly be held nonjusticiable for lack of a truly adversarial relationship between the parties. 

[that] specific legislative Act.’’ None of the conditions that might justify legislative 

sanding were present in Raines, and none were present here. No Member of Congress could claim that amendment of the quorum rules specifically disadvantaged 

him or her as against other members. (To the contrary, if the rule change is enacted 

in advance of any catastrophe, as I recommend, then all members are on an equal 

footing—not knowing whether they would be among those incapacitated by a future 

attack, or among those left to govern under the new rule.) Nor does the rule affect 

the personal prerogatives or property rights of particular members. Finally, the rule 

change will not nullify any Member’s vote. (Any Representatives among the incapacitated would be physically incapable of casting a vote to be nullified in any case; 

those present and voting after a catastrophic disruption would have their votes 

counted just like anyone else.) 1

It is true that the U.S. Court of Appeals for the D.C. Circuit has occasionally 

granted Members of Congress and the public standing to challenge the internal operations of the House. In Vander Jagt v. O’Neill, for instance, the D.C. Circuit found 

that individual Members had standing to protest the allocation of committee seats 

between majority and minority parties; the Court in Vander Jagt held that the 

plaintiff-Members had stated a valid claim in alleging that the challenged practice 

had ‘‘diluted’’ their power and influence. A later case, Michel v. Anderson, further 

found standing for voters who had elected Members whose voting power had allegedly been diluted by a House rule permitting delegates from the District of Columbia, Puerto Rico, and various territories to vote in the Committee of the Whole. This 

line of authority does not change my analysis of the standing issue. To begin with, 

both Vander Jagt and Michel were decided before the Supreme Court’s decision in 

Raines v. Byrd. In contrast, immediately after the Raines decision, the D.C. Circuit 

issued an opinion in Skaggs v. Carle denying standing to a group of Representatives 

and voters (as well as the League of Women Voters) challenging a newly enacted 

House rule requiring a three-fifths majority for actions involving tax increases. 

Skaggs did not reject the ‘‘vote dilution’’ theory of Vander Jagt and Michel. To the 

contrary, Skaggs expressly reaffirmed it. But Skaggs nevertheless found a lack of 

standing on the ground that plaintiffs in the case has suffered no ‘‘imminent injury,’’ 

since the rule in question could simply be suspended, waived, or modified by majority vote of the House at any time. Similar considerations ought conceivably to govern any challenge to the quorum rule changes that might be brought in the D.C. 

Circuit. Moreover, as part of its legislative standing analysis, the D.C. Circuit employs a doctrine of ‘‘remedial discretion,’’ under which it generally elects not to provide a remedy that would enjoin a Congressional rule. Hence, even if the D.C. Circuit were to find standing to hear a challenge to the rule change, it would likely 

dismiss the case nevertheless as a matter of remedial discretion. This was, in fact, 

the outcome in Vander Jagt and several of the other cases in that court finding 

standing to challenge congressional procedures. 

Finally, I believe that, if catastrophic circumstances do come to pass and the reduced quorum rule is invoked to pass laws that would otherwise have failed, then 

certain individuals particularly affected by those laws could have standing to challenge them. Even the, however, such lawsuits would be subject to dismissal as nonjusticiable under the political question doctrine. 

The classic statement of the political question doctrine is found in Baker v. Carr: 

‘‘Prominent on the surface of any case held to involve a political question is found 

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for 

resolving it; or the impossibility of deciding without an initial policy determination 

of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate 

branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious 

pronouncements by various departments on one question.’’ Several of these considerations would be especially prominent in a case challenging laws passed under reduced quorum rules during a national emergency. Most particularly, a court in such 

38 

2The only doubt on this point is created by the Supreme Court’s decision in Bush v. Gore and 

Bush v. Palm Beach County Canvassing Board, where the Court was apparently untroubled by 

the Constitutions’s apparent commitment of electoral vote disputes to Congress. See generally 

Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question doctrine and 

the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237 (2002). 

circumstances would properly consider the need to avoid multifarious and contradictory pronouncements during a time of national emergency. 

In addition, given the range of historical precedents on the quorum issue, and the 

fluidity of the terms at issue (as discussed above in Part I), a court applying the 

political question doctrine in this sort of suit is likely to find a lack of judicially 

manageable standards, and a textual commitment of the quorum determination to 

the House itself. United States v. Ballin made clear that the House’s rulemaking 

power is not limitless. But, as the Supreme Court showed in the 1993 case Nixon v. United States, which dismissed a challenge to a Senate rule permitting a Senate 

committee to take testimony during impeachment proceedings, the combination of 

a vague and judicially unmanageable constitutional standard, and a textual commitment of a question to Congress, militate strongly in favor of finding a political question.2

III. Suggestions for changes to the quorum rule 

What considerations would I recommend that drafters of a rule change keep in 

mind, in order to maximize the legitimacy and effectiveness of the rule, and minimize the potential for misuse? 

• The substantive condition that would trigger the rule must be stated generally 

enough that the rule can really safeguard continuity of government, yet specifically 

enough so as to prevent fractional misuse. The events of September 11, 2001, show 

that it is not necessarily in our capacity to predict precisely the type of damage our 

enemies might wish to inflict on us. Moreover, the need for continuity in government is not limited to the aftermath of terrorist attacks; it would be folly to draft 

a rule that applied only to terrorist attacks, and not, for instance, to natural disasters. At the same time, the triggering event cannot simply be the failure of the 

House to produce a quorum. As I have discussed above, the Constitution specifically 

envisions that the House will be without a quorum at some times when Members 

refuse to appear; the method to deal with that is not by changing the quorum rule, 

but rather by using the power to compel the attendance of absent Members. The 

rule must distinguish true disasters imperiling the very existence of the government, from the sorts of concocted, rhetorically overblown ‘‘crises’’ based on policy disagreements that are recurrent features of our constitutional scheme. Similarly, the 

rule should be triggered not by the mere absence of members from the House Chamber, but rather by their inability to discharge the duties of their office because of 

intervening external events. A rule incorporating all these concerns need not be excessively complex or convoluted. The rule’s condition precedent could simply read: 

‘‘In the event of an extraordinary catastrophe incapacitating a majority of members 

and preventing them from discharging their duties as Members of the House, . . .’’ 

• For the rule’s invocation to have true legitimacy, there must also be some procedural guarantee that the rule is not being improperly invoked for factional reasons. 

Unlike the traditional rule, where the quorum calculation is based on strictly objective measures such as death, the reduced quorum rule for extraordinary circumstances would be based on less clear-cut circumstances, presenting a heightened 

danger of manipulation. This loss of objective standards may be necessary in order 

to deal with the special problem the rule is designed to address; but Congress 

should certainly take care to minimize the risk of manipulation. For that reason, 

I strongly recommend that the power to invoke the rule be placed not solely in the 

discretion of the Speaker, but rather require as well the concurrence of one or more 

members of the minority party’s leadership, from a list chosen ahead of time. This 

need not be viewed as an encroachment on the Speaker’s or the majority party’s authority. Rather, the rule might well be drafted to place the ultimate decision on invoking the rule in the Speaker’s discretion, requiring only that this discretionary authority be triggered by a prior certification from outside the Speaker’s own party. 

Once again, the language providing for this could be quite simple: ‘‘Upon certification by two of the five most senior Members of the House not from the Speaker’s 

own party, that an extraordinary catastrophe has incapacitated a majority of Members and prevented them from discharging their duties as Members of the House 

(or upon certification of two of the five most senior and nonincapacitated Members 

not of the Speaker’s party, if any of the five most senior are incapacitated), and 

39 

upon the Speaker’s subsequent determination that such circumstance poses a grave 

threat to the nation, the Speaker shall be empowered to declare that the following 

extraordinary quorum rules are in effect. . . .’’ This is but one suggestion. There 

are a number of alternatives that would serve to insure that the special quorum 

rule was not invoked for political purposes, but was rather used only in cases of bipartisan agreement that truly extraordinary circumstances exist. 

• To ensure that the unusual quorum rules remain in effect no longer than the 

extraordinary circumstances that gave rise to them, any declaration that the extraordinary quorum rules are in effect should be subject to an automatic sunset provision, providing that the House will revert to its ordinary quorum rules unless the 

minority party recertifies that the extraordinary situation still obtains, and the 

Speaker chooses to reinvoke the special quorum rule. This, too, will minimize the 

risk of manipulation, since public scrutiny of successive recertifications would provide a valuable check against abuse of the reduced quorum rule. 

The CHAIRMAN. Just a moment ago you were talking about this 

whole definition of catastrophe. I found that to be intriguing, and 

I am wondering are you envisaging that we would establish some 

kind of specificity on the issue of catastrophe? 

Mr. DELLINGER. Here is the tension, Mr. Chairman. You don’t 

want the definition of the triggering mechanism to be too narrowly 

drawn, that is, the trigger that would authorize the Speaker, with 

or without whatever consultation. Because one of the things we 

learned on 9/11 is it is hard for us to imagine some of the things 

that might happen. So you want it broad enough so that it is not 

so narrowly drawn that we are thinking of the last thing someone 

did to it rather than the next thing. 

At the same time, you want to give assurance now that you are 

adopting a rule that has enough of a definition that it doesn’t give 

just any abusive Speaker who might in the future be elected the 

authority just to declare catastrophe and invoke a different set of 

rules. 

The CHAIRMAN. You were here for our discussion with the parliamentarians, Mr. Johnson and his crew. It would seem to me that 

when we get right down to it the definition would clearly be the 

death or, as we would conceivably go through this quorum process, 

basically the incapacity of Members to be here. And part of the 

question would be—and we talked about the Sergeant at Arms 

playing a role in making this determination and the use of this 

honest broker term comes into the mix here. I guess one question 

that would come forward is, what responsibility would that honest 

broker have? Could he be legally challenged, ultimately, in a decision that has been made advising the Speaker on this question? 

Mr. DELLINGER. Ultimately, the check is political, and a Speaker 

could in some instances declare tomorrow, if a number of the Members of the minority party left town, declare tomorrow that we are 

in a catastrophic situation, and it is clear that that would be so untenable that it would be rejected. 

So if you have a rule that the country can understand then that 

cabins a Speaker’s authority to be abusive. Because if it said something like, in the event of an extraordinary catastrophe, an incapacitating majority of the Members and preventing them from discharging their duties, people would say this is clearly not met. 

They are in Greenbrier, West Virginia, having their party caucus. 

This is not that circumstance. 

So the honest broker—I don’t know the institution of the House 

in a way that you all would know that institution, whether various 

40 

Members of the House or staff are beholden to the majority in a 

way that would not give that credibility. If the Speaker—if you 

don’t want to share the power of the Speaker to declare this circumstance and really—I take it the minority leader is really not an 

officer of the House itself. It is more an informal matter of your 

caucus, so it makes it a little awkward. If we have a constitutional 

House officer who was the minority party member, you could say 

with the concurrence of both of those. It is really a matter of what 

makes not just the present minority comfortable but any of the 

Members comfortable who imagine in their heads their least favorite Speaker of the other party being the Speaker at the time. What 

makes you comfortable—— 

The CHAIRMAN. When Mr. Frost and I were laughing earlier, we 

were contemplating individual personalities of both political parties. 

Mr. FROST. We won’t mention them. 

Mr. DELLINGER. I was certainly not going there with names. 

But that is the usual test to do, and it is not actually the Speaker at the time of the genuine catastrophe. What you have to worry 

about is the Speaker at the time of a noncatastrophe but who is 

invoking this rule for partisan means or some other kind of factional means and what sort of what—you wouldn’t want a rule that 

said, whatever is really, really important to do, the Speaker may 

declare that a quorum consists of whatever happens to be in the 

House. Obviously, you would want to ratchet it up so there will be 

some public constraint. 

The CHAIRMAN. I appreciate that. 

Mr. Frost in his opening remarks talked about the importance of 

a minority being involved in this process; and having served 14 

years as a member of the minority and understanding Madison’s 

view on the rights of the minority, I feel very strongly about that 

and I believe it should be brought as part of the equation. Thank 

you very much. 

Mr. HASTINGS of Washington. Thank you Mr. Dellinger, for being 

here for your testimony. 

Just for the record, I apologize for going in and out. Some of my 

constituents are here, and they traveled a long way. So I wanted 

to acknowledge them. 

But in your testimony you said you feel very strongly that we 

should—— 

The CHAIRMAN. We didn’t consider it a catastrophe, by the way, 

when we didn’t have a quorum when you were back there with 

your constituents. 

Mr. HASTINGS of Washington [continuing]. You feel very strongly 

that we should adopt a rule before hopefully an event ever happens. 

Mr. DELLINGER. I believe you stated it very well, Mr. Hastings, 

when you were here earlier. You talked about using different language. You used different terminology to really make the same 

point, that there will be much more public confidence—I think was 

your quote—public confidence in your actions according to a rule 

that we adopt now. Even if the Houses were to proceed with a constitutional amendment—and very thoughtful work was done by 

Norman Ornstein and his colleagues, very thoughtful work. Even 

41 

if one were to proceed down that route, it would be a while before 

we do that. So some consideration of a rule now, even if you wanted to amend the Constitution to allow the appointment of temporary Members. 

Mr. HASTINGS of Washington. The chairman pointed out we are 

dealing with the incapacitation area here. In that regard, if we 

were all home, for example, what are your thoughts? Some people 

have talked about a power of attorney if I may be incapacitated. 

So you have somebody externally making that decision. What are 

your thoughts on that suggestion? 

Mr. DELLINGER. That is very interesting. I think that it is actually a very good idea, that you have someone that you trust who 

is capable of informing the Speaker of your incapacity to do that. 

That actually would solve some of the problems of uncertainty, and 

it would actually be very good to advise all of the Members, as we 

should or you should, that one should have this for one’s health 

care as a general matter. I think if the Members would do that as 

part of a package dealing with their own medical health care power 

of attorney and adding to it for Members a determination of disability authorization on file with the relevant House officer—— 

Mr. HASTINGS of Washington. I am not going to draw a judgment 

on this, but it seems an approach like that, if that happened and 

we were all home, the Speaker—there would be some time period 

before he would get reports back from whoever makes that decision. 

I just say that as an observation. I wanted to get your perspective on it. 

Mr. DELLINGER. I do think a virtual Congress consideration could 

be done at some point for a very limited period of time, given the 

technology we now have. One would not—it would have dire consequences in my view in the long run, because one of the advantages of going to the national capital is people gain a larger perspective than they do if they mailed in their votes from home. 

Mr. FROST. The building may not exist. 

Mr. DELLINGER. The building may not exist. This entire area 

might be contaminated. 

Mr. HASTINGS of Washington. That is all I have. I take very seriously your suggestion and the Parliamentarian’s that we should act 

on it. Obviously, the difficulty we are going to have is how we define the incapacitation. 

In reading your testimony, you made one other observation. 

Maybe you said this in your oral testimony. But you suggested very 

strongly that even a House in diminished numbers acting clearly 

where there would be some parts of the country not being represented—because incapacitation or general revocation is better 

than having nobody in place at all. Did you—— 

Mr. DELLINGER. Absolutely. I think that it would have been, as 

I said, chance or divine intervention that it left a few Members 

able to act, and they may be from different districts. They may be 

from—we have all read about how different our congressional districts are, but they at least would have been elected by some group 

of—a constituency of American citizens would have elected these 

people, and at a time of a national crises I think some of our more 

partisan disputes would seem relatively trivial and having people 

42 

elected by their friends and neighbors—a sort of random constituencies. 

The CHAIRMAN. If you would yield on that point, I think that you 

made a very interesting argument on the issue of elections, and 

Mr. Frost has brought to the forefront this issue of the overall national confidence if in fact we had three Members of the House of 

Representatives with the constitutional responsibility that is placed 

in this body, would we in fact be in a position to address all these 

questions? And you are arguing even with this view as three Members—— 

Mr. FROST. I raised five, but three constitute a quorum. 

The CHAIRMAN. Well, we could be down to three—— 

Mr. DELLINGER. That is the worst-case scenario. I think that it 

is better than not having any House at all, and I think the mechanism of having—we know that is actually what happens if all but 

three Members were killed. If you had a joint—God forbid, a joint 

session, and three Members were not in attendance, we all know 

that under the present rules those three people would constitute 

the House in the case of death. 

That would not be the case if we went to Mr. Ornstein’s favorite 

position that has been rejected historically, which is 435, so the 

number has to be always to 218. 

But that is where we are. I think we have the spectrum of likelihood. The more you get down to that few Members, the more unlikely and extreme it is. We need to take into the highly unlikely 

but the less unthinkable possibility that some kind of biological or 

chemical attack leaves us with only 110 Members or 90 Members, 

and I think there would be a lot of public confidence. These were 

90 people elected by people who know them in their own districts, 

and they were elected, and they are not appointed, they are not replacements, they are not temporaries. 

I have a lot of confidence in 90 Members of this House stepping 

up to the occasion, rising above partisanship, recognizing that they 

want to proceed—with the concurrence of the Senate and the President or acting President they can do one thing that—I must say, 

in the interest of candor, I did think of one counterargument that 

I would ask. 

My question would be, suppose, Professor Dellinger, one of the 

first thing that rump did was to repeal the law that provided for 

expedited election of new Members. That is the hardest case, that 

they would seize power, but it would have to pass the Senate and 

be signed by the President. 

The CHAIRMAN. Even if that were to happen, there still is in 

place a structure, even though it is not expedited, for dealing—— 

Mr. DELLINGER. There would be special elections—— 

The CHAIRMAN. And in some States—one of the points we made 

during the debate, the State of New York, for example, handles 

those within a 40-day period, what we call in our preemption participation a 45-day period of time. 

Mr. FROST. I want to apologize to Dr. Eisold, who sat patiently 

through this. I won’t be able to be here. I read your statement, and 

I find it very interesting. I may want to talk to you privately about 

that. 

43 

A lot of things come to my mind. I believe that Professor 

Dellinger’s urging us to involve the minority—it is a serious problem, and I would point out to the majority that if we have a couple 

more months like this last one in Iraq, the current majority may 

find itself in the minority the next Congress. 

Mr. FROST. And it is not without possibility that there will be 

changes in the parties in the next Congress. 

The CHAIRMAN. Sure. It is always a possibility. 

Mr. FROST. Secondly, my point on the constitutional amendment, 

I still favor a constitutional amendment for replacement of Members—Members who have been killed. 

I do recognize the fact, the difficulty, of getting a constitutional 

amendment adopted. It takes years and years. And I think, because of that, I am certainly willing to entertain and hope that I 

can support a rules change that would be in place right away, although I have some questions about the way the rules change is 

drafted. 

But I think that your point, even though we disagree on the constitutional amendment issue—because I believe that ultimately it 

should have been a constitutional amendment—I agree to appointment of Members pending elections. 

I recognize that that is unlikely to occur anytime soon, if ever, 

that we will ever amend the Constitution. I will continue to support it, but if it were to happen, it wouldn’t happen next year. 

Mr. DELLINGER. I didn’t mean to suggest that I was opposed to 

the constitutional amendment. I share the Chairman’s reluctance 

about amending the Constitution. 

Mr. FROST. I do, too. 

Mr. DELLINGER. And I think that it will be a while before we get 

it, and there is something to be said for a—— 

The CHAIRMAN. If you would yield. On that point, you went on 

to argue, very persuasively, about the need for elected Representatives. Then you were critical of the notion of appointments. 

Mr. DELLINGER. That is true. I take the Chairman’s point that 

I am more agnostic about—the appointment by the Governor temporarily, if we can get into the things about having your own personal successor—— 

Mr. FROST. We are not. My preference is an appointment by the 

Governor. But that is another matter for another time. I just—I 

find your testimony very helpful. I hope that we can devise a way 

to, if we adopt this type of rule, to have bipartisan participation. 

The CHAIRMAN. Absolutely. 

Mr. FROST. We have got to be very careful in terms of the definition of a catastrophe, in terms of what we would trigger in this 

particular rule. I am not at all concerned about diminishing the 

quorum below 218. I think there are circumstances in which a 

quorum being less than 218 would be compelling, and that we have 

to figure out how to do that. 

I am concerned that we could all be affected by the common tragedy. We hope that never happens. And the issue of who determines 

incapacity is a very serious issue because this House is the judge 

of its own Members. I don’t know that we can delegate to anyone. 

So ultimately either the Speaker could take advisement, but 

whether it is the Speaker or whatever mechanism we set up, someVerDate Aug 04 2004 23:26 Sep 02, 2004 Jkt 095383 PO 00000 Frm 00049 Fmt 6633 Sfmt 6602 E:\HR\OC\A383.XXX A383
44 

one in the House would have to determine whether a Member was 

incapacitated or not. We couldn’t just delegate that to the Member’s doctor in advance. It would have to be ratified in some form 

by this body, I believe, to be legal. 

The CHAIRMAN. Absolutely. 

Mr. FROST. But it is an extraordinary issue. I hope to continue 

to move forward. We have made some progress on some relatively 

noncontroversial measures in the last 2 years. And I believe that 

you introduced those in the record. 

The CHAIRMAN. Yeah. The litany of all of the changes. 

Mr. FROST. But while they have been important, they have not 

dealt with the larger issues. And it is important that we deal with 

this very large issue of incapacity. And I thank you for being here. 

Mr. DELLINGER. Thank you. 

The CHAIRMAN. Mr. McGovern. 

Mr. MCGOVERN. I want to thank you for being here. I am like 

Mr. Frost, I am inclined to want to support some sort of a rules 

change. I think this is a discussion draft that there are a lot of 

questions that have arisen. I guess my concern is that, you know, 

it goes back to the issue of legitimacy, as to what people across the 

country will actually view as legitimate in case of a catastrophe. 

I mean, if there are 200 Members here, I guess the people—that 

sounds like a lot of Members. People might feel that these people 

are capable of making sound decisions; 100, maybe it becomes a 

concern to some. But if you get down to 50 or 30 or the 20 or 10, 

I mean, the decisions that would be made I would assume in the 

aftermath of a catastrophe might be decisions like we are going to 

go to war somewhere, might include decisions to revoke people’s 

civil liberties, establishing curfews, some pretty serious decisions 

will be made. And I am not sure that the American people might— 

will feel confident if a handful of people of one party, you know, 

or under 10 people or 15 people are making those decisions, would 

be credible. 

I mean, I worry about, you know, you try to take this to kind of 

the worst-case scenarios. And I am especially concerned if you have 

a situation that arises where people cannot get together, where you 

have people who are physically and mentally able to make decisions but they are trapped in their districts, they are trapped outside of the capital city, or they are unable to kind of get together. 

And so this issue of legitimacy I think is incredibly important. 

I think you can devise all kinds of ways to keep this thing running. 

One person can change the rules and adopt all kinds of things to 

kind of keep things going. 

On the other hand, I don’t think—I think it would be very difficult to go—or to have this government make the right decisions 

if people did not trust that the people were there to make those 

very decisions. 

Mr. DELLINGER. Here is the dilemma. You could imagine putting 

in the rule a floor, that a quorum will be the capacity—a majority 

of the Members with capacity, but in no event shall it be lower 

than 50 Members, of which a quorum shall be 25. 

Now, I think what you would be implicitly doing in that case is 

saying if, God forbid, it got below that, there would be no House. 

I think it would be implicitly acknowledged that the President 

45 

could simply act alone. That is what Lincoln would have told you. 

If you really had no House at all, Lincoln would tell you the President’s first obligation is to preserve the Union. He would have announced that he has declared war and he is raising taxes, and that 

he is doing this. And history would judge him or her on the basis 

of the validity of those choices, but would not question, I think, his 

decision to make them. 

So at some point the question is, is it better to implicitly do without a House at some—does the level get so low, recognizing that 

I think you are basically suspending the Constitution rather than 

trying to comply with the letter—— 

The CHAIRMAN. So we would have a President who could conceivably want to do in the first branch of government, then? 

Mr. DELLINGER. In the absence of a constitutional amendment, 

you are faced with a choice of either operating with a very small 

House or no House. 

Mr. HASTINGS of Washington. I just make this observation. And 

if we got to the point where you said we are—our membership was 

down to the very precarious numbers, I think we would all acknowledge that the power could immediately flow to the executive 

branch, assuming the executive branch wasn’t harmed in whatever 

caused us to have our numbers diminished. 

You could see how that could have happened after September 

11th. It certainly happened December 7th. It took a little bit longer 

during the Civil War. But that generally is what happens. But 

leading to that—this is just kind of thinking outside of the box— 

I know if there is a declaration of war, that triggers a whole lot 

of other things that—as to how we do business. 

Is there any way that we could contemplate having, in case of 

a disaster, some sort of trigger mechanism to say this is a declaration of war would kick in, which allows for other acts to be done 

in a quick way? Has that been contemplated? 

Mr. DELLINGER. You could do some version of the War Powers 

Resolution that has more authority conferring in really dire circumstances. 

But I actually think that even a handful of Members, summoned 

to the White House, or a temporary equivalent, would be of great 

solace to the country. The President called the nine of you over and 

says, This has been a horrendous calamity. I want the nine of you 

to endorse—here is what I propose. I want the nine of you to endorse it. 

You are elected from nine different places. I think that is better 

than nothing. I don’t mean to say it is good. I can easily disparage—— 

Mr. MCGOVERN. I am not advocating nothing. I am kind of pursuing some of those other thoughts about whether or not people 

could possibly participate, you know, and not be together. I am 

just—I am not saying that is the right way to go, but I am saying 

that you could have nine Members from one State, you know. 

And again, I do think, especially in the face of a catastrophe, it 

is important to have a check on the White House. And, you know, 

I mean, you want to make sure that whoever is the Commander 

in Chief, whether it is the President or whoever is in the line of 

succession, is actually asking the right questions; you know, is not 

46 

acting in a panic, you know, and that there is someone else, there 

is another body, you know, kind of pitching the questions. But we 

don’t always do that now, and we have got 435 Members. 

But I think on some of the decisions that would have to be 

made—again I am not arguing against the idea that we need to 

move forward with some sort of rule change, but I am simply saying that I don’t think it is unreasonable to think that if only a 

small number of people are here, depending on who they are—I 

mean, if you have 10 Members from each region of the country, you 

can argue that we have got a little bit of everything here. But there 

may be some issues of credibility when it comes to some of the decisions that are being made, which can be war and as well a total 

restriction of our civil liberties; could be a number of things that 

are not that far-fetched to imagine in the aftermath of a terrible 

catastrophe. 

So it may be worth trying to think of are there other ways, you 

know, to kind of beef up the numbers, maybe not putting—if it had 

to be 50 or 100 or 200, but to the extent that there are Members 

who are able to participate, whether there may be creative ways 

to get them to be here if we cannot get them to the Capitol. 

Mr. DELLINGER. That is worth exploring. 

The CHAIRMAN. Let me before you leave raise one other issue 

here, and it has to do with the issue that Mr. McGovern was raising. That is the question of action. 

You talked of the idea of the President calling the nine remaining living Members of Congress down to the White House to get 

them to support an action that he might choose to take. I guess one 

of the points that I would make is if we do face a crisis, there are 

many who argue that, you know, what is it exactly the United 

States Congress would do? Would we have to have a debate on the 

Medicare prescription drug bill? 

You know, the decisions that would be facing us are primarily 

immediate. And, yes, Mr. McGovern correctly raises, there needs to 

be some kind of check on this with the executive branch. But we 

are not going to be considering a major education bill when there 

are that many Members of the House left. 

And I just wonder if you have any thoughts on this issue, the urgency of having the institution immediately in place and with a full 

complement of Members, as we deal with the potential crisis and 

challenge that is on the horizon. 

Mr. DELLINGER. I am less persuaded than the Commission was 

that having a full complement in that short period is really all that 

beneficial, as compared with the moving ahead, concentrating on 

getting the elections done, and getting new Members elected. 

The CHAIRMAN. We are in total agreement. I wanted to hear your 

thoughts on it. 

Mr. MCGOVERN. Would you yield? 

The CHAIRMAN. Yes. 

Mr. MCGOVERN. I wasn’t contemplating that we would take up 

a prescription drug bill during those times, although if we did, you 

would probably keep the roll call open until you get a majority. 

The CHAIRMAN. That is a good idea. 

47 

Mr. MCGOVERN. But I—you know, but there are serious issues 

involving, you know, what this country—it goes to the very heart 

of what this country is about, the civil liberties. 

The CHAIRMAN. It was not based on yours, but a number of people at the outset when this debate came forward, the question is: 

What exactly will we be doing the next day? Must the House of 

Representatives be in session? I know an argument can be made 

about the solidarity that we saw on the East Front of the Capitol 

on the afternoon of September 11 was an important symbol to the 

American people; but at the same time, I do think that if you look 

at the actual work product itself and what is necessary, I think 

that Professor Dellinger and I are just agreeing on that. 

Mr. HASTINGS of Washington. Just one observation. And I subscribe to the idea that you have to have checks. I would suggest 

if you got down to nine Members, you would have to convince five 

people to check the President. But I would suggest if you got down 

to nine Members, five people checked the President, you would 

probably have an outrage against the five Members. So you would 

be in a situation where you would have to respond, and someone 

would have to show some leadership. 

So while that is all valid, when you are talking about the issues 

that are in front of us and things that have to be done under those 

circumstances, I think you would have a backlash if you had a 

small number and tried to check the President under those circumstances. 

And, again, if he made a bad decision, you have other opportunities when we are reconstituted in order to make these corrections. 

So I would just make that observation. I am not saying they are 

not valid. 

The CHAIRMAN. Thank you very much. 

Mr. MCGOVERN. I wanted to respond to what Mr. Hastings said, 

because I think that, conversely, you may have a group of Members 

who might call into question actions a President may be contemplating in the aftermath of a catastrophe and actually be heroes, 

actually be trying to make sure the President did the right thing. 

So I am just simply saying that, you know, I know you are not 

disagreeing. 

Mr. HASTINGS of Washington. I understand. All I am simply saying is that if you look back at past history, and when we have 

these sort of events that have happened, people tend to coalesce behind the executive. That is what I am suggesting. In fact, you could 

argue for those that—like the division of power, you would argue 

whenever we get into a world war, all power flows to the President. 

The CHAIRMAN. Thank you very much again, Professor. Appreciate your being here. 

And our final witness who has, as was pointed out by Mr. Frost 

on the length of his patience, has been shown by the fact that Mr. 

Frost walked out of the room, as you said. We are now approaching 

21⁄2 hours, and you and your colleague have been very patient in 

following what, obviously, is a fascinating, interesting challenge; 

something we don’t want to ever contemplate, but we are in the 

business of dealing with a lot of crises that do take place in this 

institution. 

48 

That is why we felt it very important that you come forward to 

offer your remarks. 

The CHAIRMAN. So we appreciate having Admiral Eisold with us. 

And your prepared statement will, without objection, appear in the 

record. 

When was the last time you testified before a Congressional committee? 

STATEMENT OF JOHN EISOLD, M.D., THE ATTENDING PHYSICIAN TO CONGRESS AND REAR ADMIRAL, MEDICAL CORPS, 

U.S. NAVY 

Dr. EISOLD. Two and a half years ago; second time in 80 years. 

I can get to the points that I want to make fairly quickly by 

paraphrasing my statement. Basically what we are talking about 

from my perspective is impairment and incapacitation. Clearly 

death, as has been discussed, is a simpler situation with which to 

deal with. 

The CHAIRMAN. There is some finality to that. 

Dr. EISOLD. My intent is, pure and simple, to ensure the continuity of government. In carrying out that mission on a daily 

basis, we are interested in the health and welfare of not only the 

Members, but the staff and visitors to the Hill. They are all important. 

Our mission also includes consideration being given to prepare 

for potential mass casualties consequent to a weapons of mass destruction incident such as we have been alluding to here. And I am 

adequately staffed and resourced to accomplish this. I am fully connected with all of the local, Federal, and civilian medical authorities so that, in a situation where we are overwhelmed, I can tap 

into a full response with great confidence, as I did during anthrax. 

One thing I will point out, though, is that in my role, confidentiality is very important. For the sake of discussion here, we would 

have to assume that by virtue of the public nature of whatever 

event it was, that the particulars surrounding a Member’s health 

or lack of health are public knowledge. Therefore, it gets easy to 

talk about their situation. However, if I have been given knowledge, by virtue of taking care of a Member or if Members come to 

me about a significant health problem that will clearly have the potential to incapacitate a Member in a short period of time, but they 

have decided not to discuss this with anybody or even talk about 

it with their family, I will obey that trust. I would not violate that 

confidentiality. 

And, quite frankly, in support of leadership, in situations here 

where it is obvious that there may be an impaired Member, if I 

have been approached, it has always been in the interest of the 

Member’s well-being and dignity. So there has been a great deal of 

respect for that trust expressed by everybody. 

Now, if I just look at the Members’ health and some of the continuity of Congress problems that arise, there is a range of health 

status. You are well. You are dead. And somewhere in the middle 

is incapacitation. 

If we have somebody with a minor illness like the flu, we all understand somebody is missing several votes and being out for a few 

days, and that is understood. If we look at another level, like major 

49 

surgery or pneumonia, again I think the tradition is that they are 

excused, even some for an extended cancer treatment or something 

like that. 

But then when we get to significant disease, prolonged hospitalization, rehabilitation, or inability to get around, we need to 

look at what is at stake. Then you have to decide. At one end of 

the spectrum you ask yourself the question, Can the Member vote? 

Can he or she be expected to vote? Can they do constituent work? 

Then you have got at the other end of the spectrum a Member so 

ill, maybe even on a ventilator or comatose after an automobile accident, that it is intuitive to anybody that the prospect of returning 

to work or at least returning to work in any given time period or 

the ability to perform at all is so marginal, that you should even 

consider would this person leave before the end of the term. Would 

they be able to do any work at all in this incapacitated situation? 

Now, implicit in this, I have raised the question of impairment. 

Impairment of a Member is an objective description of a Member’s 

state of health as determined by the medical establishment. It is 

me discussing the things that are wrong with somebody and their 

degree of impairment. Usually you have got a prognosis with that 

as well. Will the Member fully recover? If so, when? Is it permanent impairment. Is the impairment cognitive, or is it physical? If 

so, to what degree? Is death a possible outcome, and so on? All of 

that requires some judgment. 

Keeping in the back of our mind that medicine is not a precise 

science and that patient outcomes are not always totally predictable, sometimes you may have someone who you think is going to 

turn the corner, and they don’t. Likewise, there is someone you 

thought was going to be laid up for an extensive period of time who 

recovers quickly. 

My statement here is that a rushed judgment about a patient’s 

ultimate status may be ill-advised. I think that whenever you are 

thinking of an impairment, there is a time frame. Some people are 

going to recover soon and some in a long time. I would keep that 

in mind. 

Now, what do we do with any of this information about an impaired person? Maybe we judge someone as being incapacitated, 

raising the subject of secession, a nonmedical issue. However, when 

there is death of a Member, there is already a process in place 

whereby succession will ensue. 

The difficult situation that we have been talking around today is 

incapacitation. Incapacitation is a subjective judgment about a 

Member, saying that a Member is too impaired to be likely to be 

able to return to meaningful public service. 

At this point there has to be a determination about what is the 

performance standard. And the judgment about incapacitation is 

made relative to that standard. For example, can the Member walk 

into the Chamber, move about the Chamber and put their voting 

card in by themselves? You can think of a thousand different scenarios. But there has to be a performance standard first before you 

can decide whether someone is incapacitated. 

The state of incapacitation would be made by nonmedical people 

based upon medical input. If you give me a performance standard, 

then I can tell you how impaired the person is and the likelihood 

50 

that they are going to be able to meet that standard. Then someone 

else can make a judgment about incapacitation. 

If one is talking about one or two impaired people, I might possibly recommend to a Member, their or their staff that because of 

The Members situation they ought to think about leaving office, because it is either counterproductive to their health, undignified, or 

that they probably aren’t going to get back to work. It is always 

easy when you can arrive at such a conclusion in a very collegial 

way or family way. 

But one always has to anticipate contentious situations. 

I would discuss this with appropriate people, for full disclosure. 

I would not, however, make a statement to leadership that a Member was incapacitated. It is a fine line. While I personally would 

not say, someone is incapacitated, I would say exactly how much 

a person is impaired and what is the likelihood a person could or 

couldn’t do their job. Then as an institution, someone else would 

match that up with whatever standards have been decided upon. 

In a collegial way, I would work as an advisor to say, what are realistic expectations. But I would always, since my compact is with 

the patient and their confidentiality, focus on their health and 

their medical needs, while institution has to act independently with 

what their needs are. Then we marry the two together. 

What we need to look at is incapacitation. Incapacitation really 

requires a lot of thought before you tell a Member they are out of 

the game. 

While I think that under the right circumstances, with people 

working together, you can do that, it is the hardest part of this 

whole enterprise. 

[The statement of Dr. Eisold follows:] 

PREPARED STATEMENT OF DR. JOHN EISOLD

I am pleased to be able to address this very important member topic relating to 

impairment, incapacitation, succession and the Continuity of Congress with you 

today. In my position as the Attending Physician, I am quite cognizant of the significance that health or more importantly the lack of good health plays in all of our 

lives and, in particular, its vital role in the political process. At this time of many 

external threats to our well being, it is imperative that these issues be considered. 

My intent today is to define the playing field that needs to be explored to study the 

issues at hand. While on the surface, various approaches may seem readily workable, the truth is that the issues are quite complex, rest neither in the medical nor 

political arena exclusively and don’t lend themselves to easy solutions. 

First, let me define my clinic’s mission. It is to ensure the Continuity of Government—pure and simple. In carrying out that mission, on a daily basis the health 

and welfare of not only the members but the staff and visitors to the Hill are important. This, also, includes consideration being given to prepare for potential mass 

casualties consequent to a weapons of mass destruction incident. 

Currently, the clinic is adequately staffed and resourced with physicians, technicians, nurses, ambulances, transport vehicles and a mobile medical support capacity 

to accomplish our mission routinely. During a mass casualty situation or other 

major incident, we can rely on the rapid engagement of the full measure of support 

from Federal and regional civilian contingency health resources. Furthermore, these 

additional assets are regularly on standby or prepositioned for scheduled events 

such as the Inauguration, State of The Union, Joint Sessions etc. 

Important, as well, in the delivery of healthcare, confidentiality is obligate. I raise 

this issue of confidentiality, because the discussion that follows assumes that any 

member’s health status or death has become public knowledge. This would, therefore, exclude those situations where a member has poor health but has not shared 

this with anyone, perhaps not even with a family member. I would respect the memVerDate Aug 04 2004 23:26 Sep 02, 2004 Jkt 095383 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 E:\HR\OC\A383.XXX A383
51 

ber’s wishes, even if job performance had deteriorated, and not discuss their health 

status. Leadership has always understood this and never pressed my for information in even the most delicate and possibly obvious situations. In fact, if concern has 

been raised, it has been out of interest for a member’s well-being and dignity. 

Turning exclusively to the members and their health, lets look at some of the Continuity of Congress problems that can arise. Take for example the range of poor 

health status. A member may have a transient illness (like the flu) where he or she 

is temporarily out of action; not a problem. At the next level, how about a significant problem but one which is time limited, like major surgery or a severe pneumonia. Again, this has not usually been problematic and has been routinely excused. 

Continuing on, though, how about a chronic significant disease requiring prolonged 

hospitalization or rehabilitation. What is at stake? At one end of the spectrum, can 

the member be expected to vote or do constituent work? At the other end, is the 

member so ill that the prospect of return to work or the ability to perform adequately is so marginal that consideration may be given to leaving office before the 

end of a term? 

Specifically, I have raised the issue of the degree of impairment of a member, that 

is, the objective description of the state of a member’s health as determined by the 

medical establishment. Usually a prognosis is part of that description. Will a member fully recover? If so, when? Will there be permanent impairment? Will that impairment be primarily cognitive or physical or both? If so, to what degree? Is death 

a possible outcome and so on. The only caveat to add is that medicine is not a precise science and patient outcomes are sometimes unpredictable and even surprising. 

Some patients may unexpectedly deteriorate while others miraculously recover. A 

rush to judgment about a patient’s ultimate status may be ill-advised. 

What to do with any of this information raises the subject of succession, a process 

that is not a medical issue. Clearly, when there has been a member death while 

in office, steps towards succession will ensue. The more difficult situation relates to 

member incapacitation. Incapacitation is a subjective judgment that a member is too 

impaired to be likely to be able to return to meaningful public service. It is made 

by non-medical people but based on meaningful and accurate medical input. Subsequently, the issues of leaving office followed by succession may have to be addressed. In this regard, it is possible that I might recommend to a member and their 

family that leaving office early be considered because future service might be counterproductive to good health or that any return to service is unrealistic or perhaps 

even undignified. This is what I would view as full disclosure to a patient so that 

personal decisions can be made with all facts considered. I would not, however, 

make a statement to leadership that a member was incapacitated. I would only describe the degree of impairment. A fine line, I realize, but my compact is ultimately 

with the patient, not the institution. Only the institution, possibly in concert with 

the member, can make a decision about incapacitation and how it relates to continued service. At most, I would provide a discussion of all ramifications, if asked, but 

would stop short of rendering a final judgment. That would be up to leadership. 

After all, incapacitation must be measured relative to performance expectations. I 

may have an opinion but not the final say. I am an advisor. 

In closing, I have tried to create a framework in which to analyze the problems 

of impairment, incapacitation and succession. Medical as well as institutional assessments are required, but there is a definite divide between the two when incapacitation and possible early departure from office with consequent succession are 

in question. While succession itself is a difficult issue, it becomes significantly more 

difficult when large numbers are considered or when the process of leaving office 

hasn’t been sorted out in member impairment situations. Thank you for your attention. I will be pleased to answer any questions. 

The CHAIRMAN. Good. Thank you very much, Doctor. I consider 

you to be an extraordinary public servant. I know you work constantly in behalf of the Members of both the House and the Senate. 

And I have seen the sacrifices that you have made. I just want to 

go on record as saying what I have told you privately many times, 

how much we do appreciate all that you do. 

One of the things that you alluded to in the beginning of your 

remarks was this issue of your ability to have access to all of the 

assistance that you might need from, say, the Federal or private 

52 

entities, local entities. And basically you said you have the resources. 

One question that I would pose has to do with the issue of your 

not knowing about every single Member of the United States Congress. And the question would come to the forefront, I think, What 

exactly should be provided to you as the Attending Physician of the 

Capitol as far as information about Members? Because it is very 

clear—I don’t know what the percentage is, I don’t know of Members who do utilize your services—I know that I regularly utilize 

your services. 

But I guess I would ask, do you think it would be advisable for 

Members of Congress, upon their entry into this body, to provide 

to you dental records or DNA information or anything like that 

that could conceivably be helpful? 

Dr. EISOLD. The larger question is just their general health. The 

more I know about everybody’s health, the more I can help them. 

Admittedly, many people will keep their doctors at home. 

I think that almost, as though joining the military, for example, 

Members, as a condition of employment should understand that 

when they come on board, that I will have a chance to get with 

them and review their medical history or perhaps even do an exam. 

I think that would be very helpful, to be able to get whatever medical information is on file. 

The CHAIRMAN. So would you like us to actually require that of 

Members upon entry into this body, that they have that examination, and provide to you—— 

Dr. EISOLD. Either provide it to me or let my clinic do it. 

The CHAIRMAN. Because right now that is not required. 

Dr. EISOLD. Right. It is voluntary. I guess you can require almost 

anything but I don’t know if you can require people to do things 

about their health that they don’t want to do. But it certainly could 

be a very strong recommendation. 

The CHAIRMAN. I am thinking about this in terms of this whole 

issue of incapacity, because as you correctly say, it is a subjective 

determination. But there is information on impairment, as you say, 

that is something that you are in a position to comment on. 

Dr. EISOLD. I think it would be good practice for the health of 

the Congress to encourage Members, to regularly update their medical information the ideal would be to see them in the clinic and 

examine them every year or at least review their health status 

every year. 

The other question you raise is a little more problematic, the 

DNA buckle swab. 

The CHAIRMAN. That and dental records for identification. 

Dr. EISOLD. It would be on a voluntary basis. It is a good idea, 

because there is the chance that somehow in some catastrophe, you 

will not be able to identify remains except by that method. 

The CHAIRMAN. So maybe requiring the DNA or dental records 

provided to you on file may be helpful? 

Dr. EISOLD. It would be. It leads you down the pathway of how 

you manage care for the Congress, ensure its continuity, identify 

people and so on. It does open up a whole number of items here. 

The CHAIRMAN. Mr. Hastings. 

53 

Mr. HASTINGS of Washington. Thank you, Dr. Eisold, for being 

here and sitting through all of this. There will probably be a test 

later on for you. 

In your testimony, you suggested or said that to make a determination of incapacitation from a medical standpoint is an objective practice. 

Dr. EISOLD. Yes. Inherently, impairment is objective. 

Mr. HASTINGS of Washington. But you would not go as far as to 

advise the Speaker, or whomever, as to whether that person could 

fulfill his or her duty? 

Dr. EISOLD. I would advise them but I would stop short of saying 

that this person is incapacitated. For example, somebody who was 

paralyzed from the neck down, under the right circumstances, is 

perfectly capable, although severely impaired, to be a Member of 

Congress. 

Incapacitation, in and of itself, is really only relevant to what the 

performance expectations are. If you give me the performance expectations, I can probably advise you. I would say I don’t think he 

or she will be able to do that. 

Mr. HASTINGS of Washington. Going to the next step then, is it 

fair to say that a determination of whether to—by whatever means 

we arrived at a conclusion to define incapacitation, that probably 

is a subjective determination? 

Dr. EISOLD. Correct. That is the subjective part of it. 

Mr. HASTINGS of Washington. So that being the case, how do we 

link those two together in order to somehow have some sense that 

this can’t get out of hand from a political standpoint? What would 

you suggest that we do? 

Dr. EISOLD. I think that you need a broker who is not looking 

for anything except an accurate reporting from a medical perspective on a person’s health status. 

Mr. HASTINGS of Washington. Should that be part of the record 

somehow? I am thinking I don’t know how we do that because you 

have to—on the privacy part. 

Dr. EISOLD. In these circumstances where you are talking about 

some catastrophe, I think that there is public knowledge that a 

person is in the hospital. Some of the particulars could be handled 

confidentially with the leadership. 

How you would sort it out as an institution, I don’t have a recommendation. Is it something that the minority leader and the 

Speaker would have to agree on? If one disagrees, then by definition, the Member is not incapacitated. 

You have got your quorum if you declare a Member not incapacitated, but by all practical purposes this person may not be able to 

vote, they may be on a ventilator and the hospital physician who 

is taking care of the person says, ‘‘it is against medical advice to 

move this person.’’ Then do you physically go out and hire a Nightingale to somehow bring them in? There are those practical issues. 

It is important. It is not easy. 

Mr. HASTINGS of Washington. From a medical standpoint, people 

do improve. So one day you could be incapacitated, one day you 

won’t? 

Dr. EISOLD. Correct. It is a very fluid situation as well. 

54 

Mr. HASTINGS of Washington. Well, of the three issues that were 

broadly outlined by the Chairman at the outset, this by far is the 

most difficult, just trying to get this nailed down, in my view. 

Dr. EISOLD. I appreciate your trying to nail it down without having it get politicized. because you can create all sorts of scenarios 

where it is absolutely a crucial vote. 

Mr. MCGOVERN. First I want to think Dr. Eisold for his testimony. I have the same kind of concerns that Mr. Hastings has, because, I mean, you are not in the position to say to the Speaker, 

Congressman so-and-so is incapacitated; Congressman so-and-so 

isn’t. You know, that is not your job. 

Dr. EISOLD. Right. 

Mr. MCGOVERN. And issues of privacy and all of this other stuff 

comes into play. You can serve as kind of an adviser, but you can’t 

divulge certain things because of the patient-doctor relationship. 

But I think it—I think, you know, that means, as you said, that 

this is very subjective. Which goes back to what Mr. Frost was saying in the very beginning of this hearing; that on this particular 

issue there really needs to be some sort of bipartisan consultation. 

I mean, there—if there is any part of this that really needs to have 

an agreement between kind of both sides, it is on this. 

Dr. EISOLD. Right. 

Mr. MCGOVERN. To protect the integrity of whatever we decide 

here, and to make sure that it doesn’t become political. And so I 

would hope that on this particular issue, that maybe as we work 

through this draft resolution that it is not solely the Speaker’s decision; that it is the Speaker in consultation with the minority leader, you know, so that there is no question that the decisions are 

being made based on merit and not on politics, not on something 

else. 

It is very complicated and poses all kinds of questions as to how 

people come to the decision as to who is incapacitated, who is not. 

But I appreciate your testimony very much. 

Mr. Chairman, I just also want to acknowledge our colleague 

from Connecticut, Mr. Larson, who has been here from the very beginning. He has worked on this issue tirelessly and devoted an incredible amount of time to this and it is evident that he takes this 

very seriously. He has sat through all of this, along with Dr. Eisold 

and the others who are here. So I want to commend him for all of 

his work. 

The CHAIRMAN. I mentioned him in my opening remarks. 

Mr. MCGOVERN. I wanted to mention him again. 

The CHAIRMAN. I would like to see if Mr. Hastings would like to 

say something about the presence of Mr. Larson. 

Mr. HASTINGS OF WASHINGTON. I would like to acknowledge the 

presence of Mr. Larson here, too. 

The CHAIRMAN. Mr. Larson, as I said in my opening remarks, 

came to me yesterday afternoon and talked about the idea of being 

here. But what I did say earlier is that he has provided a very, 

very thoughtful approach to dealing with this. He is the ranking 

minority member of the House Administration Committee, and he 

has worked closely with us in a very bipartisan way in trying to 

address these important constitutional concerns. We do appreciate 

your patience in being here. So thanks, John, for that. 

55 

And again, let me express, as everyone else has to you, John 

Eisold, the appreciation for your great service and the fact that you 

have taken the time to be here. You know, if you think about the 

challenges that the Attending Physicians of the past year have 

faced, they are nothing like what you have gone through between 

September 11th and anthrax and ricin and everything else. So we 

appreciate your handling of this in a very professional manner, 

what obviously has been one of the most serious and dangerous 

times in the history of our Republic. 

And so, without objection, the committee stands adjourned. 

Thank you all very much. 

[Whereupon, at 12:40 p.m., the committee was adjourned.] 

(57) 

APPENDICES 

58 

APPENDIX A 


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APPENDIX B 

(Submitted by Parliamentarian Charles Johnson) 

Hinds’ Precedents, volume 4, sections 2889 and 2890 


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APPENDIX C 

Parliamentary steps taken to ensure continuity of operations in the 108th Congress 


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APPENDIX D 

Discussion draft—Provisional number of the House 


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APPENDIX E 

Continuity of Congress Legislation in the 108th Congress 

(1) H.J. Res. 83, proposing an amendment to the Constitution of the United States 

regarding the appointment of individuals to fill vacancies in the House of Representatives (sponsored by Congressman Brian Baird of Washington) failed on passage by 

the Yeas and Nays (2⁄3 required): 63–353–2 (Roll Call Vote No. 219 on June 2, 2004). 

(2) H.R. 2844, the Continuity in Representation Act of 2004 (sponsored by Congressman James Sensenbrenner of Wisconsin and Congressman David Dreier of 

California) agreed to on passage by the Yeas and Nays (majority required): 306–97 

(Roll Call Vote No. 130 on April 22, 2004). 

(3) H. Con. Res. 190, to establish a joint committee to review House and Senate 

rules, joint rules, and other matters assuring continuing representation and Congressional operations for the American people (sponsored by Congressman David 

Dreier of California and Congressman Martin Frost of Texas) agreed to on passage 

by voice vote (June 5, 2003).