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90–083 2003

HEARING ON THE CONTINUITY OF CONGRESS:

SPECIAL ELECTIONS IN EXTRAORDINARY CIRCUMSTANCES

HEARING

BEFORE THE

COMMITTEE ON HOUSE 

ADMINISTRATION 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

HEARING HELD IN WASHINGTON, DC, SEPTEMBER 24, 2003

Printed for the Use of the Committee on House Administration

(

(II)

COMMITTEE ON HOUSE ADMINISTRATION 

BOB NEY, Ohio, Chairman 

VERNON J. EHLERS, Michigan 

JOHN L. MICA, Florida 

JOHN LINDER, Georgia 

JOHN T. DOOLITTLE, California 

THOMAS M. REYNOLDS, New York 

JOHN B. LARSON, Connecticut 

Ranking Minority Member 

JUANITA MILLENDER-MCDONALD, 

California 

ROBERT A. BRADY, Pennsylvania 

PROFESSIONAL STAFF

PAUL VINOVICH, Staff Director 

GEORGE SHEVLIN, Minority Staff Director

(1)

CONTINUITY OF CONGRESS: SPECIAL ELECTIONS IN EXTRAORDINARY CIRCUMSTANCES 

WEDNESDAY, SEPTEMBER 24, 2003

HOUSE OF REPRESENTATIVES,

COMMITTEE ON HOUSE ADMINISTRATION,

Washington, DC. 

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

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

of the committee) presiding. 

Present: Representatives Ney and Larson. 

Staff Present: Matt Peterson, Counsel; Paul Vinovich, Staff Director; Jeff Janas, Professional Staff Member; Charles Howell, Minority Chief Counsel; George Shevlin, Minority Staff Director; Matt 

Pinkus, Minority Professional Staff Member; and Catherine Tran, 

Minority Staff Assistant. 

The CHAIRMAN. The committee will come to order. 

The committee is meeting today to discuss the important and 

grave issue of continuing operations of Congress in the event of a 

catastrophic attack. This is not a comfortable issue to confront, of 

course, as it forces us to contemplate the possibility of our own demise in a terrorist attack or catastrophic situation. 

However, we have a duty as representatives of the people of the 

United States to examine this issue seriously and thoroughly, to 

determine how best to ensure that the People’s House continues to 

function effectively during times of a national emergency. 

Since the terrible and fateful morning of September 11th, 2001, 

we have become painfully aware of the destructive intent of our 

country’s terrorist enemies as well as the increasingly sophisticated 

and devastating methods by which they carry out their deadly 

work. 

The possibility that terrorists could detonate a nuclear, chemical 

or biological weapon of mass destruction within our Nation’s capital, annihilating major portions of our Federal Government, potentially killing dozens or hundreds of Members of Congress, is one 

that we cannot ignore, though we pray it never happens. 

In the event of such an attack, the presence of a strong national 

leadership will be more important than ever before. The people of 

this country will be desperately seeking reassurance that their 

Government remains intact and capable while acting vigorously in 

the Nation’s defense. 

Following a catastrophic attack, it would be imperative that a 

functioning Congress be in place with the ability to operate with 

2

legitimacy as soon as possible. How to ensure the continuity of the 

House of Representatives under such circumstances is a complex 

and difficult question that defies, I think, a simply solution. 

When drafting the Federal Constitution, our Founding Fathers 

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

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

the House may be filled only through special elections. As a result, 

no Member has ever served in this House who has not been first 

elected by the people he or she represents. 

Today the committee will be considering H.R. 2844, the Continuity and Representation Act of 2003. This bill provides for expedited special elections in the event of a large number of House vacancies resulting from a catastrophic attack or other extraordinary 

circumstance. 

The goal of this legislation is to ensure the continuing operation 

of the House during the times of national crisis while at the same 

time protecting the character of the House as an elected body. 

The debate on this subject has essentially divided into two 

camps, those who view a quick reconstitution of the House as the 

most important consideration, and thus support a constitutional 

amendment allowing for the appointment of temporary replacements to fill vacant House seats; and, number 2, those two believe 

retaining the House’s elected character is paramount and therefore 

support expedited special elections. 

Without objection, because of time and the votes, I am going to 

submit the rest of this for the record. 

[The information follows:]

Those who support an amendment argue that because of the many logistics involved in the conduct of an election, filling numerous House vacancies by means of 

special elections would be too cumbersome and time-consuming a process—one that 

could result in Congress ceasing to function at all for a substantial period of time. 

Thus, those who take this position believe the most effective way to address the continuity issue is for the Constitution to be amended to permit the appointment of 

temporary replacements to the fill vacant House seats. 

Though this proposal represents an efficient method for filling House vacancies 

in emergency situations to ensure the continuing operations of the House, it also 

raises the specter of a House whose membership is dominated by unelected representatives, thereby altering the history of the House as a body consisting only of 

individuals elected by the people. 

Resolving the tension between expeditiously filling House vacancies in the event 

of a catastrophic terrorist attack and maintaining the House’s historical character 

is no easy task. For this reason, the Committee has called this hearing so that the 

leading thinkers on the issue of congressional continuity can shed more light and 

bring greater understanding on the many different aspects of this consequential 

issue.

The CHAIRMAN. Mr. Larson. 

Mr. LARSON. Thank you very much, Mr. Chairman. 

Also because of the time constraints, and I recognize that we are 

going to vote shortly, let me say that I join with the chairman in 

looking forward to this discussion. It has been a rarity in the 

United States Congress, for me at least, to have the kind of indepth dialogue that I have read about, both in the newspaper accounts and also from the testimony of the distinguished panel that 

we have had before us, and I must say how impressed I am with 

that testimony. We don’t do enough of reading about James MadiVerDate jul 14 2003 10:55 Nov 06, 2003 Jkt 090083 PO 00000 Frm 00004 Fmt 6633 Sfmt 6602 E:\HR\OC\D083A.XXX D083A
3

son, and we don’t do enough in this body of listening to what other 

learned Members of our august body bring to bear on important 

issues of this nature. 

As the chairman has indicated, clearly this is a matter that has 

been graphically brought before us because of the events of September the 11th. And Members have sought different solutions. 

And in the process, I think have engaged the body in enlightened 

debate. And our purpose this afternoon is to continue that enlightened debate. 

I might add that Chairman Sensenbrenner and Chairman 

Dreier, in reading through their testimony, give salient examples 

of why we shouldn’t abandon the very elective nature of our body. 

And yet equally compelling arguments have been given by Mr. 

Frost and Mr. Baird about the urgency to address a body and to 

have a body that is capable of responding to a crisis. 

So we find ourselves in this committee today in, I think, the 

laudable position of listening to enlightened members of our own 

body, and then a panel of experts afterwards who will debate this 

issue. 

I will submit the rest of my written testimony and at this time, 

Mr. Chairman, get the ball moving so that we can hear from our 

panel of experts, which is more important. 

[The statement of Mr. Larson follows:]

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The CHAIRMAN. Thank the gentleman from Connecticut. 

If there are no further statements, we will commence with the 

testimony of the panel. On the first panel, we have Chairman Sensenbrenner, Wisconsin, the Chairman of the House Judiciary Committee, the chief sponsor of H.R. 2844; Chairman David Dreier, of 

California, the Chairman of the House Rules Committee, who is 

also sponsoring H.R. 2844; Congressman Martin Frost of Texas, the 

ranking Democratic member on the House Rules Committee; Congressman Brian Baird, who has proposed a constitutional amendment that would permit temporary appointments if a significant 

member of Members are unable to serve during a national emergency; and Congresswoman Candice Miller, cosponsor of H.R. 2844. 

And, I would note former Michigan Secretary of State. 

With that, Chairman Sensenbrenner, we will start with you. 

STATEMENT OF THE HON. JAMES SENSENBRENNER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. H.R. 

2844 is a responsible effort to enact a straightforward and effective 

procedure to replace House Members should a catastrophic attack 

strike the Congress. This legislation would provide for the expedited special elections for Members to fill vacancies in extraordinary circumstances, defined by the bill as occurring when the 

Speaker declares that there are more than 100 vacancies. 

Within 14 days following such an announcement, the State political parties may nominate candidates as provided by State law, to 

run in the special election to be held within 21 days. 

Let me say that I am not set on the 21-day deadline. I think that 

that deadline can be extended. But, it should not be extended unduly, because it is important that people who are elected to fill vacancies be elected very quickly, so that they can come to Washington with the mandate from their voters. 

I would also state that there is no such thing as a perfect election. However, I think that an election, imperfect though it may be, 

is better than having appointed Members sit in the House of Representatives; and this entire issue is whether, should there be catastrophe, replacement Members of the House of Representatives 

should be elected by the people or appointed by some appointing 

authority. Elected representatives, which has always been the case, 

or appointed representatives, which has never been the case. 

In the Federalist Papers, James Madison used the strongest of 

terms to state that the House must be composed only of those elected by the people. And explicitly rejected the proposition that the 

appointment of Members authorized by Congressional legislation is 

compatible with the American Republic. Therefore, the very concept offered by opponents of this legislation, a constitutional 

amendment that would allow for the appointment of House Members, was explicitly rejected by the Founders as antithetical to republican, with a small ‘‘R,’’ government. 

Congress has the clear constitutional authority to alter State 

election laws. The Founders explicitly considered Congress’s power 

to require expedited special elections the solution to potential discontinuity of government in emergency situations. 

15

As Alexander Hamilton wrote in the Federalist Papers, the Constitution gives Congress, quote, ‘‘a right to interpose’’ its special 

election rules on the state, quote, ‘‘whenever extraordinary circumstances might render that interposition necessary to its safety.’’

While a catastrophic attack on Washington would no doubt cause 

massive disruption here, the situation would be less severe in localities throughout the country where the special elections would be 

held. Several State laws already provide for very quick special elections in normal circumstances, let alone emergency circumstances. 

For example, Minnesota law provides that a special election be 

held no more than 33 days after a vacancy. That same State, less 

than a year ago, further demonstrated the resiliency of the election 

process when the tragic death of Minnesota Senate candidate Paul 

Wellstone required the substitution of a new candidate just 10 days 

before the election. 

Today absentee and overseas ballot requests transmitted by electronic means would help facilitate expedited Federal elections. 

Touch screen voting could reduce the need for poll workers and 

even eliminate entirely the need for paper ballots, and the Pentagon has already developed a system to allow troops overseas to 

vote over the Internet in the 2004 elections. With today’s constantly advancing election technology, it will make it easier in the 

near future for people to exercise their right to elected representation in special elections. 

Proposals for a permanent constitutional amendment would, in 

certain crucial moments in American history, ban voting entirely 

for everyone, everywhere. In other words, a constitutional amendment would accomplish what no terrorist can, mainly striking a 

fatal blow to what has otherwise always been the ‘‘People’s House.’’

Remember, Representatives represent people, Senators represent 

States. H.R. 2844 is founded on clear existing constitutional authority, while preserving the vital time tested value of elected representation that has made this Nation the most successful experiment in self-governance the world has ever known. Thank you. 

The CHAIRMAN. Thank you for your testimony. 

[The statement of Mr. Sensenbrenner follows:]

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The CHAIRMAN. Chairman Dreier. 

STATEMENT OF THE HON. DAVID DREIER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. DREIER. Thank you very much, Mr. Chairman, Mr. Larson, 

Mr. Linder, Mr. Brady. I want to say at the outset that I greatly 

appreciate, as all of my colleagues do, your willingness to take on 

this issue; and I appreciate especially the remarks of Mr. Larson 

about the desire of many of us to spend some time focusing on 

what it is the framers of the Constitution actually had in mind. 

I think that Chairman Sensenbrenner has very ably focused on 

two of the authors of the Federalist, James Madison and Alexander 

Hamilton, in underscoring the fact that having this, the first 

branch of our government, the entity which is actually mentioned 

before any other, that being the people’s House, the House of Representatives is mentioned in Article 1 of the Constitution, ahead of 

the United States Senate, and that realization, that not only as you 

said, Mr. Chairman, that every single Member who served here has 

only been elected, they have only served here based on their having 

been elected. 

There is no other Federal office where that exists. We all know 

that one can obviously be appointed to a vacancy in the United 

States Senate. We know that one, we looked at President Ford, by 

virtue of appointment, can become President of the United States. 

But, the people’s House is the only place where that exists. And I 

know that that is something that is sacred. And to me, I believe 

that we should be very very careful before we look at the prospect 

of amending the U.S. Constitution. 

In fact, members of the Commission, and I want to congratulate 

them for their work, like our former minority leader, Bob Michel, 

said it very clearly when he looked at the fact that the constitutional amendment should be the very last resort. 

I will tell you, as I approach a quarter of a century of service 

here in the House of Representatives, I have got to say that I voted 

for constitutional amendments in the past; and, frankly, I have 

changed my votes now on constitutional amendments. I used to 

vote for the flag-burning amendment. 

One of the reasons was that Jerry Solomon threw me up against 

the wall and threatened me if I don’t vote in favor of the flag 

amendment. But, before he passed away, I told him that I was voting against the flag burning amendment, and I voted for the constitutional amendment to balance the budget. But, you know what, 

if we had a constitutional amendment brought forward to balance 

the budget, requiring a balanced budget again, I would not vote in 

favor of that constitutional amendment, because we have proved 

that we can, in fact, balance the budget without amending the U.S. 

Constitution. 

Similarly, I think that we need to do everything that we possibly 

can to ensure that we maintain the nature that the Framers had 

for this institution. And that is why I am particularly pleased that 

the lead author of this important measure, Mr. Sensenbrenner, has 

said that we can look at moving beyond the 21 days as prescribed 

in our legislation. And I think that we should do that. 

26

I just want to say that this is—what we ponder here is obviously 

a horrible thought. As the last person to leave the U.S. Capitol on 

September 11th, I was stupid enough to stay there up until 11 

o’clock, upstairs there on the third floor. And I finally got out. And 

when you look at the Capitol and think about what could have happened, and of course what could have happened to our membership, it is just a terrible, terrible thought. 

So I will tell you that I think that as we look at this challenge 

that is ahead of us it is a difficult one, but please, please, please 

go very slowly. 

Let me just say that as sort of the lone Republican who represents Hollywood, a number of people have speculated over exactly, because this is all kind of—this whole prospect of losing all 

of these Members of Congress could create a great science fiction 

movie. 

One proposal that has come forward for me as we look at the 

virus of an amendment to the U.S. Constitution and all of the unintended consequences that that might create, someone proposed a 

movie that was actually entitled, The Virus That Ate the Constitution. 

When I looked at the characters in this, because of this very important piece of legislation, Liam Neeson was to play of course, the 

role of Chairman Sensenbrenner. The academics who are obviously 

involved in this, I sort of see Woody Allen and Don Knotts in those 

roles, Mr. Chairman. And you, Mr. Chairman, of course I see Robert Redford fulfilling your role. And I should say that the very modest role that I would play would be filled by the very humble Arnold Schwarzenegger. 

But this is a serious matter for us as we look at this. But the 

ramifications could be very, very far reaching, and I wish you well 

in your deliberations. I will say that we can move very, very quickly in passage of this legislation as opposed to the normal 7 years 

that it would take, on average for ratification of an amendment to 

the U.S. Constitution. 

The CHAIRMAN. With that we are going to terminate your time. 

[The statement of Mr. Dreier follows:]

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The CHAIRMAN. Mr. Frost of Texas. 

STATEMENT OF THE HON. MARTIN FROST, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. FROST. Mr. Chairman, we have a series of votes. I don’t 

know if you want me to begin my testimony or if you want to break 

at this point. 

The CHAIRMAN. We have 10 minutes. So I will leave it up to you. 

Mr. FROST. Mr. Chairman, I will briefly summarize my statement and submit the rest for the record. 

The CHAIRMAN. Thank you. 

Mr. FROST. Because I know that you have other witnesses. 

Mr. Chairman, this is a situation like I encountered when I practiced law in that you draft a will for a client, and the client won’t 

come in and sign the will, because he is afraid if he signs it he is 

going to die the next day. 

Well, that is really what we face here. Congress will not come to 

grips with this in a meaningful way, because we are afraid of our 

own demise. Unfortunately, we have to entertain that possibility. 

I hope it never occurs. But, we do have to entertain the possibility 

of mass casualties. 

Mr. Chairman, I am pleased to appear before you. But let me say 

at the outset, I am opposed to this legislation as a sole solution to 

the problem. I do not believe that mandating expedited special elections will work to resolve a problem of catastrophic proportions. 

I am convinced that the only solution is a constitutional amendment that will provide for the temporary replacement of deceased 

or incapacitated Members of the House. These temporary replacement members would provide Americans with unquestionably legitimate representation in the House during the immediate aftermath of a catastrophic attack, until States have time to hold real 

special elections that allow voters to make informed choices about 

who should represent them for the remainder of the Congressional 

term. 

My statement spells out concerns that I have about the very 

short time for a special election, and the great difficulty in holding 

those elections. I would like to add one point, Mr. Chairman, that 

we cannot assume that any attack would be limited solely to Washington, D.C. It is quite possible that any attack could also take 

place in the State capitals and in the major cities of other States 

simultaneously, thereby paralyzing the structures, the electoral 

structures of some of our states. 

So I think it is illusory to assume that you can have special elections that would be done in a prompt and meaningful way in a relatively short period of time; and it is absolutely critical that the 

next day, or shortly thereafter, when an attack occurs that there 

be a functioning Congress.

I would remind the gentleman before, that the—during the deliberations of the special working committee that Chairman Cox and 

I co-chaired during the last Congress, it was brought out that a 

quorum of the House of Representatives is a majority of those 

sworn and living. And so that if you have five Members who survived, a quorum would be three; and I would suggest to you, to this 

committee and to my colleagues, that the business of the country 

42

being conducted by three Members would not be something that 

would be widely respected and something that our population could 

have confidence in. So that it is essential that the House be reconstituted as quickly as possible. 

I believe that a constitutional amendment that provides for a 

method for appointing successors, whether—there are several 

methods that have been proposed, and I will not at this point take 

sides as to which one I would prefer. But a method that provides 

for prompt appointment would ensure the efficient and prompt 

functioning of this government, which is absolutely critical and 

which was not a situation contemplated by our Founders. 

Sometimes you have to realize that our Founders, no matter how 

great they were, did not and could not have contemplated things 

that are occurring in the 21st century. The mass destruction of the 

Congress was not something that I believe they ever contemplated. 

Had they done so, I believe they would have provided for a mechanism for replacement in a prompt way. 

And I submit the remainder of my statement for the record. 

The CHAIRMAN. Without objection. I thank the gentleman for his 

testimony. 

[The statement of Mr. Frost follows:]

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The CHAIRMAN. We have two votes. If you would like to return—

if the Members that have testified would like to return for questions, I will leave it up to them. 

[Recess.] 

The CHAIRMAN. The committee will come to order, and we will 

continue with testimony from Congressman Baird of Washington. 

STATEMENT OF THE HON. BRIAN BAIRD, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF WASHINGTON 

Mr. BAIRD. Mr. Chairman, I want to thank you for holding this 

hearing. My distinguished friend and colleague, the ranking member, Mr. Larson, and Mr. Linder, thank you. 

This is as serious as it gets. I am glad that we are holding hearings on this. 

Two years ago, on the night of September 10th, 3,000 of our fellow citizens went to bed not knowing that they would be killed the 

next day. There is no guarantee that on any given day when we 

go to bed or any given night we are not facing the same fate the 

next day. What is certain is that if that were to happen right now 

this Congress and this country are ill-prepared to deal constitutionally with the loss of the majority of the House Members, or 

even substantial numbers. 

It is true, I think, that the Framers could not have imagined 

this. It is also true that the Framers placed a high premium on the 

principle of direct elections. But that is not the only thing that they 

placed a high principle of value on. There were also fundamental 

concepts of proportion of representation by the States in one of the 

bodies of the Congress. Checks and balances and separation of powers were also critically important. 

Those who argue that in some way proposals to amend the Constitution to provide for prompt replacement, followed by genuine 

election, is somehow eating the Constitution, would, in so doing, 

allow the entire Article 1 provisions, the whole set of Article 1 provisions to be nonexistent and overridden by an executive who was 

not elected, most likely, and who may well declare martial law. 

In our fealty to this principle of direct election, which we all hold 

dear and important, we must not allow that to eliminate all other 

Article 1 functions during the time of grave national crisis. Yet that 

is precisely what we would do. We need to get past hyperbole. We 

need to get past false dichotomies and acknowledge the following 

principles. 

Every Member of this Congress believes that, ideally, Members 

of the House of Representatives should be elected. But this is not 

about an ideal world. It is true that Madison would have held fast 

against anything other than direct elections, but I reckon he would 

have held fast against the simultaneous destruction of every Member of this body. If he were to face the situation we face today, he 

would also be asking, I trust, and I have read extensively about the 

gentleman and his position on the Constitution, he would also be 

asking, who checks the executive? He would be asking, who has 

other powers? And he would be gravely concerned about vesting all 

of the powers of this country in a single nonelected person whom 

most Americans don’t know. So let’s not make a false dichotomy 

that we don’t care about special elections. 

48

In the initial proposal I offered 2 years ago, we proposed a special election. But the bill before us today I believe is unrealistic and 

has several problems. 

First of all, to mandate, in my original proposal we put forward 

a 90-day period, but you are assuming there that ideal conditions 

will prevail. What happens if you mandate a 3-week period or a 90-

day period and circumstances, related perhaps to the disaster 

itself, prevent you from doing that? It is better to provide for 

prompt replacement of wise and reasoned people and then have 

genuine elections so that the American people can truly deliberate. 

It is not simply getting to cast a vote that matters, it is getting 

to cast an informed vote in a judicious manner that matters, and 

we must provide for that. We must not allow the proposal before 

us and we are discussing today in this committee to lead the American people or the Members of this Congress to pat ourselves on the 

back and think that problems have been solved. 

At a bare minimum, even under the most ideal conditions, and 

I think conditions that are not realistic, we would still be without 

a Congress for at least 3 weeks, probably 5, and I think more likely, judging from the State executives I have spoken with and election executives, closer to a couple of months. 

Now I want to thank the committee. I want to thank the working 

group, the Commission on Continuity chaired by Norm Ornstein 

and Tom Mann, and also my good friend, Jim Langevin, who is a 

former Secretary of State himself. 

They assure us that maybe you can hold elections, but would 

they be genuine? That is questionable. And, more importantly, 

what happens to the Congress during that time period? 

Do not sacrifice Article 1 of the entire Constitution. Do not sacrifice checks and balances. Do not sacrifice separation of powers. 

And do not sacrifice proportion of representation in the name of 

specious and hasty elections. That is my fundamental message. 

Let me just close with this. It is somewhat symptomatic, perhaps—and I enjoyed the humor of our chairman of the Rules Committee about who would play whom in a movie about this catastrophe. We all want to fantasize that we will be the survivors. We 

all want to fantasize that we will be played by the heroic lead male 

or lead female. 

But the reality in this case is we are going to be played by pieces 

of charcoal, and we have got to accept that, and we have to deal 

with that. Somebody has to come in and pick up those pieces, and 

our job is to create a playing field in which they can do that, to 

write the script that allows wise and decent people to fill the roles. 

We don’t know who they are, necessarily, but we must not have 

those roles played by nobody, and we must not leave an unelected 

person running this entire country under martial law. 

The CHAIRMAN. Thank the gentleman for his testimony. 

[The statement of Mr. Baird follows:]

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The CHAIRMAN. The gentlelady from Michigan. 

STATEMENT OF THE HON. CANDICE MILLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mrs. MILLER. Thank you, Mr. Chairman, certainly Ranking 

Member Larson, members of the committee as well. It is certainly 

a great opportunity for me to be able to address this issue today. 

I am here to speak in favor of H.R. 2844, the Continuity of Representation Act of 2003. I think the need for this legislation is so 

very, very critically important in the wake of the absolutely horrific 

attacks against our Nation on 9/11. 

Of course, as we all know, on that fateful day the enemies of 

freedom clearly targeted the pillars of our Nation. The terrorists attacked the World Trade Center, which represented our economic 

freedom. They attacked the Pentagon, which represents our military strength. By all accounts, Flight 93 was targeted either at the 

White House or the Capitol Building, both symbols of our democratic form of government and our freedom. In fact, I think it was 

only due to the heroic actions of those passengers on that particular plane that stopped it from reaching its intended target. 

The Congress must ensure that our government remains strong 

and stable in the event of a catastrophic attack, and so we begin 

to think about what to do in regards to the United States House 

of Representatives if the unthinkable were to happen. 

Of course, the President would be replaced quickly by the existing line of succession. The courts would be replaced quickly by a 

Presidential appointment. The Senate would be reconstituted 

quickly through a gubernatorial appointment as the 17th amendment outlines. It is only the House of Representatives that would 

not be able to function quickly during a time of national emergency 

because of the constitutional provision which requires direct election of the people. 

Let me quote Article 1, Section 2, which does state: When vacancies happen in the representation on any State, the executive authority thereof shall issue writs of election to fill such vacancies. 

I think that is the operative phrase here: writs of election. 

I am proud to be an original cosponsor of H.R. 2844 because this 

bill does provide an effective mechanism for the reconstitution of 

the House of Representatives in the event of a tragedy, and it does 

so by ensuring that we continue to elect Members of the House, 

who are in fact the only Federal elected officials who for the entirety of our national existence have been directly elected by the 

people. 

There have been a number of suggested alternatives to the proposals that we made in this legislation. Some have called for temporary appointment of Members of Congress in such an emergency, 

either through gubernatorial appointment, like that in the Senate, 

or even by a sitting Member naming a successor to take the seat 

in the event of a Member’s death. 

Either of these ideas would require a constitutional amendment, 

which would be a change from both tradition and constitutional 

mandate, which expressly calls for the direct election of Members 

of the House. 

54

Many people have also argued about the difficulty of the process 

of holding so many elections, special elections in such a short period of time. This is an area where I do have some experience, and 

I have to agree that it would be difficult. But it has also always 

been my observation that election officials will always rise to the 

occasion to complete the required work, especially in time of a national emergency. 

Before coming to Congress I was honored to serve as Michigan’s 

Secretary of State for 8 years, and one of my principal responsibilities in that role was serving as the Chief Elections Officer of my 

State. I do understand that the time frame that we have called for 

is greatly compressed; and I think this is a starting point for our 

debate, as both Chairman Sensenbrenner and Dreier pointed out. 

But let me point out several areas where the process would need 

to be modified I think to accommodate this very short time frame. 

First of all, you would be eliminating a primary by having the 

political parties, who are recognized under their respective State 

laws, of course, nominate their candidates. 

This would also negate the requirement for petitions to be gathered by the candidates as well as the verification process that most 

States do require, either by their secretary of State or their boards 

of canvassers. 

In regards to election administration functions such as ballot 

printing, programming, testing, hiring workers and preparing polling places, most polling places are relatively stable, in fact, so 

much so that they are printed on voter identification cards for the 

most part. A congressional ballot would only contain a single office, 

which would dramatically increase—or, ease printing, programming and testing. 

It should also be noted that since Congress has passed the HAVA 

Act, the Help America Vote Act, most States are embracing election 

reforms such as following a model that was begun in Michigan of 

a State-wide computerized voter registration file which is constantly updated by local election clerks and motor vehicle departments, thereby allowing an up-to-date, clean file to be printed at 

any time and provided to the polling sites. 

Also, States are now rapidly moving towards a uniform system 

of voting machines. In Michigan, for instance, we will soon have all 

5,300 of our precincts using optical scan voting equipment. So that 

would allow for a vendor to always have a camera-ready ballot, and 

all you would have to do is plug in the name of the candidates and 

to go to print. 

In regards to overseas military voting, the Department of Defense has already piloted a program which allows our troops to vote 

by the Internet, so that the men and women protecting our Nation 

would not be disenfranchised.

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I recognize that this is not a perfect situation, but I also believe 

that reconstituting the House of Representatives quickly in time of 

a national emergency is of critical importance, and I do believe that 

we should limit our debate to the amount of time necessary to hold 

orderly elections where the integrity of the process is upheld. 

Under no circumstances do I believe that we should deviate from 

the direct election of Members of the people’s House. 

Thank you, Mr. Chairman. 

[The statement of Mrs. Miller follows:]

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The CHAIRMAN. Well, I thank the panel for their very interesting 

testimony. 

I had a question for Chairman Sensenbrenner. 

There has been a couple of criticisms that have been out there 

that, one, the candidates would not be selected by the voters 

through a primary process; rather, would be selected by political 

parties. The second, the accelerated time schedule would not allow 

for people to become familiar with the candidates’ stances. 

I am not worried about that second one. I am not sure in 2 years 

people can figure out a candidate’s stance. But I am wondering 

about the first criticism, about the primary process. Any thoughts 

on that? 

Mr. SENSENBRENNER. Well, primary elections have been something that started out in the early part of the 20th century. We are 

the only democracy that has political parties nominate its candidates through a primary election process. It seems to me that in 

times of a severe national emergency which would wipe out approximately a quarter or more of the Members of the House of Representatives the quickest way to get an election organized would be 

for the parties to nominate replacement candidates. 

I would point out that there are some States in their special election laws that do not allow for primaries but just put everybody’s 

name on the ballot. I think that having the recognized political parties do it would be a way, as Representative Miller has said, of 

shortening the process, preventing having a separate campaign for 

a primary, as well as not having time for the circulation of petitions and the verification of those petitions. 

The CHAIRMAN. Thank you. 

The question I had of either Congressman Frost or Baird, the 

language of the proposed constitutional amendment does not limit 

appointments of House Members only to instances where a large 

number of Members are killed or incapacitated as a result of a catastrophic attack. So, you know, is it your view that routine vacancies would be filled by appointments? 

Mr. FROST. I would be glad to start. 

Obviously, any wording of any constitutional amendment would 

have to be developed by the Judiciary Committee, by Mr. Sensenbrenner’s committee; and certainly there is no one formula, there 

is no one constitutional amendment that everyone has agreed upon 

in advance, as I understand. 

So my guess is—it is just a guess, Mr. Chairman—that if an 

amendment were to be brought forward, that it would—there 

would be a threshold number prior to the amendment taking effect. 

I don’t know what that threshold number would be, but it would 

have to be a substantial number. 

Mr. BAIRD. Mr. Chairman, if I can address that, if I might. I 

have given a great deal of thought to this, as you know, began the 

night of September 11th, and participated in the working group 

and the commission. 

We have run into a fundamental challenge, actually several. 

When you try to set a threshold for at what point do we institute 

special measures, be it special expedited elections or appointments, 

and there—let me give you a couple of the problems that arise. 

69

First of all, let’s suppose you say, I think it is very questionable 

whether or not it is truly constitutionally legitimate, in spite of 

what the House rules say, to have a quorum be chosen, sworn and 

living. Because if it is three people, it certainly does a grave injustice to what the Framers wanted. So then somewhere above that. 

Well, let’s suppose you set it at a hundred. If a hundred members 

of the Republican Conference or the Democratic Caucus are suddenly eliminated, which is quite easy to imagine if we are at a retreat somewhere, do we still have the same representative body 

that we had before? 

If 200? We are still not to a majority threshold. If we lose the 

entire delegation of the State of California, does California, the seventh largest economy in the world, not have representation in the 

U.S. Congress? 

I understand that the amendment that I have proposed as an alternative would substantially change the scenario, albeit it would 

still provide for special elections to be held promptly following the 

placement. But my premise in suggesting that we would nominate 

our own replacements is this. 

Our citizens have elected us to make decisions about whether we 

take this country into war and send our sons and daughters into 

combat. They have elected us and empowered us to tax them or 

give their taxes back to them, et cetera, et cetera. As the representative of that district, we know the district or should know it rather 

well. We are likely to choose members of our own party, thereby 

obviating inserting party language which has never existed in the 

Constitution. And I think it is more parsimonious and elegant. 

It is a change. I recognize that. But it is a change that, in the 

realities of the time, I think it protects us well from a more disastrous scenario. 

Finally let me say, if we are to return, and I think wisely so, to 

the counsel of Madison and Jefferson and Franklin, et al., I wonder 

what they would say about adhering to the principal of special election but inserting party politics into that. Because my recollection 

is that they had some real concerns about parties, and allowing the 

parties to choose the candidates for the people might in itself vary 

substantially from the intent of the Framers, thereby raising questions about the legislation before us today. 

The CHAIRMAN. Do you have any thoughts on what the threshold 

should be? Loss of 50 Members? 100? 

Mr. FROST. Well, I don’t have a magic number, Mr. Chairman. 

But I think that is something that would be subject to deliberation 

by the Judiciary Committee with the advice of people in our leadership on both sides, as well as advice of scholars who have studied 

the subject. 

The CHAIRMAN. Mr. Larson. 

Mr. LARSON. Thank you, Mr. Chairman. 

My question first would be directed to Chairman Sensenbrenner 

or Representative Miller, if they choose to respond. But how was 

the number of 100 established? When you went through this process, why did you choose a hundred? 

Mr. SENSENBRENNER. It was entirely an arbitrary number, as 

any number from 1 to 435 would be. One hundred is approximately 

a quarter of the House of Representatives; and I think that Mr. 

70

Dreier and I and the people that we talked to felt that that was 

sufficient trigger to invoke that part of Article 1, Section 2, Clause 

4, relative to extraordinary circumstances. 

Mr. LARSON. You and Mr. Dreier both eloquently talk about the 

sacred relationship between—in the people’s House being elected 

by the people. But a scenario under which the whole House might 

be wiped out or a scenario, as Mr. Frost and Mr. Baird have pointed out, in which a quorum is a limited number of people, how do 

you answer their concerns about the first amendment in general, 

and the concerns that they have raised with regard to the first 

amendment? 

Mr. SENSENBRENNER. Well, the Constitution, as we all know, has 

an elaborate system of checks and balances to prevent any one individual or any one institution from becoming too powerful in this 

country. That was a reaction against the parliamentary supremacy 

that existed many years ago and to this day in the United Kingdom. 

My answer to the question is simple; and that is that, even if the 

House were reduced to five Members out of 435, the checks and 

balances and the existing law and existing constitutional provisions 

would allow the President and the Senate to be able to run the 

country until the House was reconstituted. 

The problem that I have in terms of the appointment amendment—and the amendment, you know, will result in the appointment of House Members—is that we hear complaints that an appointed President and an appointed Senate is putting too much 

faith in appointed officials who stepped in as a result of an emergency. 

What their amendment will do is have an appointed House as 

well. So the entire government would end up being appointed, at 

lease temporarily, whereas the legislation that Mr. Dreier and Ms. 

Miller and I have envisioned would be to have elected Members 

serve in at least the House of Representatives as quickly as possible. 

The other point that I would like to raise is that the United 

Kingdom was under attack by the Nazis during the Second World 

War, and the blitz in London lasted for several months. The House 

of Commons in the UK is the people’s House, just like the House 

of Representatives is in the United States, and no one who has 

ever served in the House of Commons has been there other than 

by direct election of the people. 

Now with the bombs raining on London, including a direct hit in 

the Commons chamber, fortunately not when the House was sitting, there was never any move in the United Kingdom to fill vacancies in the House of Commons by means other than a special 

election. 

And there that country was under attack. The capital city and 

the building that the parliament meets in was actually being attacked, and they didn’t talk about having appointed representatives in the House of Commons. They said they would have special 

elections, and that is what they did. 

Mr. LARSON. Given your experience——

Mr. FROST. I would only respond to my friend, Mr. Sensenbrenner, that that was prior to Hiroshima and Nagasaki. 

71

Mr. LARSON. Point well made. 

Ms. Miller, given your experience as Secretary of State, is the 21-

day proposal—and I note that Mr. Sensenbrenner also noted in his 

testimony that he was willing to look at expanding that time 

frame. What is a realistic time frame to constitute an election that 

doesn’t, as was pointed out by Mr. Frost and Mr. Baird, jeopardize 

the validity of that vote or the constitutionality of new Members? 

Mrs. MILLER. Well, I have a little trouble with the 21 days myself, having run elections. So I was pleased to hear that we have 

a little flexibility on that. 

I do think, though, for instance, if you think about a State like 

Minnesota—I think you are going to be hearing from the Secretary 

in Minnesota in the next panel—I believe that special elections in 

Minnesota are now run in 33 days or something. So you wouldn’t 

want to have a situation where you are mandating States to go further than what they currently can to run a special election. I think 

you have to take a look at all of that. 

But when we think about the possibility of not having a functioning House for some period of time and what it means, if you 

think about 33 days or 35 days or what have you, I mean, we just 

had an August recess where we were gone for 5 weeks here in the 

House. I think most people would think in the case of a catastrophic attack the most important thing would be to have the ability to commit the troops. Well, with the War Powers Act, of course 

the President already has that authority. 

Mr. LARSON. One of the most memorable events of September the 

11th was the fact that the Congress, both the House and Senate, 

were able to convene that evening. The point that Mr. Frost and 

Mr. Baird continue to make is the immediacy of the crisis. I can’t 

tell you how many number of people have said to me that the most 

reassuring thing of that day was to see those Members standing together. 

Fortunately, as has been pointed out by everyone, we were 

spared because of the bravery of people. It seems that at the heart 

of this argument is the need to immediately address a crisis, as in 

contrast to making sure that we retain the purity and sanity of the 

people’s House being elected directly by people. 

Is there any compromise—and certainly the Chairman of the Judiciary Committee is an artful master in this area. Is there any 

compromise between these positions, Mr. Sensenbrenner? 

Mr. SENSENBRENNER. I can’t really see there being a compromise. 

Because when this debate started out there were two proposals 

that were on the table. One was to allow the gubernatorial appointment of representatives and the other was to allow Members to 

designate temporary successors. 

Now, of the five representatives that you have on your panel 

here, Mr. Dreier is absent, four of the five of us are members of 

the opposite political party than our governors. And having the gubernatorial appointment in every case except Mr. Baird’s would undoubtedly result in a member of the opposite party, the party that 

lost the election in the district, ending up being the temporary representative. That is not democracy. 

72

The other proposal would be to allow Members to appoint temporary representatives, and it would be kind of a Member designating his temporary successor. 

When I first started out in the political business as a staffer in 

the Wisconsin legislature during my college years, that was when 

there was a great fear of a massive Soviet atomic attack, and there 

was a blue ribbon commission that made that suggestion as an 

amendment to the Wisconsin Constitution. That proposal, because 

of public opposition to members designating their own successor in 

the event of an attack, ended up sinking quicker than the Titanic 

did, never to come back. 

I think that if you are looking for legitimacy in a reconstituted 

House of Representatives following a disaster, having a House of 

Representatives be hand-picked successors of a deceased or incapacitated incumbent Congressman would end up being much more 

illegitimate than running through an election process. 

Now, no election is perfect. We all know that. But it seems to me 

that an imperfect election is better than either of these methods of 

appointment. 

Mr. FROST. If I can respond to two points that were made by different members of the panel. 

First, as to the length of time for a special election—and I know 

that the laws differ from State to State. The law of my State requires a runoff in a special election if no one receives at least 50.1 

percent, more than 50 percent of the vote, which could take—extend the period of time for filling the seat. 

Prior to 1957, Texas did not require runoffs in special elections, 

and Ralph Yarbrough was elected to the United States Senate. A 

liberal Democrat was elected to the United States Senate with a 

plurality of the vote. So the Texas legislature changed the law to 

make sure that that could never happen again in a special election. 

So we now require runoffs; and runoffs are of varying periods of 

time, 2 weeks up to a month, depending upon the State law. I don’t 

know whether all States require runoffs in specials, but my state 

does. 

Secondly, as to the point by Mr. Sensenbrenner, even though the 

Founding Fathers did not incorporate political parties, the document, into the Constitution, there is nothing that would prohibit us 

from specifying in a constitutional amendment, if we delegated to 

the Governor the right to appoint, that the Governor be required 

to appoint a replacement from the same political party as the deceased Member. 

Mr. LARSON. Mr. Baird. 

Mr. BAIRD. Let me address two points, if I may. 

First of all, I think if you were to ask the voters—and ultimately 

this would have to go to the voters if we were to pass it through 

this body. You have a choice in a time of national crisis. You can 

either have no one from your district at all representing you in the 

Congress and give those authorities completely over to a member 

of the Cabinet who you don’t know at all and who was never elected, or you can vest the person who you did vote for, who was duly 

elected, with the authority of nominating someone to represent 

your district as Article 1 provides for and as the great compromise 

provided for during a time of grave national crisis. 

73

Your choice is nobody at all, checking someone who you never 

elected, or someone who is at least connected to you by virtue of 

having been nominated by the person you did elect for a temporary 

period; and, following that, you will have the opportunity to vote. 

We are all in agreement that expedited special elections make 

sense. 

But let me underscore the merits of an appointment process. One 

of the challenges you face is trying to set the threshold, which we 

alluded to already. The other challenge is, what is the time frame? 

The time frame becomes albeit important because you want it to 

be prompt, but it is less essential once you fill the seats, if you can 

fill the seats with wise and decent people, and if we aren’t qualified 

to pick wise and decent people to fill our seats then we shouldn’t 

be here. 

But if you fill the seats, then you can take the time for a truly 

deliberative election. Then if special circumstances—anthrax in the 

mail, a direct secondary hit on a State capital—if those occur, then 

you have still got your Congress functioning. And if it occurs that 

one State cannot complete its election as promptly as the other 

State for whatever reason, they still have representation in the 

body. You don’t have some kind of strange misproportionate representation in the body because one State can’t function as quickly 

as another. Once you do the appointments, you are in better shape. 

Let me finally suggest this. I don’t know as well as the States 

these gentlemen come from, but I know well the bench that we 

have to draw from in Washington State. We have former U.S. Senator Slade Gordon. We have Representative Al Swift. We have Sid 

Morrison. We have Dave Evans. We have existing governors. We 

have leaders in both parties who are distinguished statesmen. 

I think it would be profoundly beneficial to the American people, 

if days, not months or not many weeks after a crisis, those people 

convened, and they could say, those people will do what is right for 

this country in this time of crisis and not just bank it all on the 

other body or on some Cabinet members who happened to get lucky 

or nobody who happened to get lucky and some general who takes 

charge. 

Mrs. MILLER. If I could make one quick comment in regards to 

Mr. Larson asking if it would be possible to have a compromise. I 

think you asked that in your remembrance of 9/11 and all—the two 

Houses being on the steps of the Capitol. 

We all have personal stories about 9/11. I remember very vividly 

that morning we were actually conducting an election in Detroit. 

They were having their city elections. 

And I happened to be out at a precinct and watched the first 

plane go into the first tower and you were trying to get your mind 

around what you were seeing there, and went to the next precinct 

and saw the second plane come in. And of course I called our mayor 

in Detroit. We were wondering what was going on. They were closing the bridge to Canada. New York had canceled their elections 

for very obvious reasons, and we wondered for a moment whether 

or not we ought to cancel ours as well. But we thought about that 

for about a second-and-a-half because we very quickly recognized 

that continuing with our democratic process is really what sets us 

apart from the rest of the world and our Constitution does as well. 

74

That is why I believe that whatever we agree to here needs to 

be within the confines of our Founding Fathers and our constitutional mandates and not amending the Constitution or the terrorists will be winning in a small way. 

Mr. LARSON. Kudos to you, by the way, and I was unaware of 

that and I am glad to learn that here this afternoon. 

The CHAIRMAN. On a note, you know that day, 9/11, it was truly 

a citizens Congress because everybody was on the street corners in 

small groups of three, four, or five, depending on which street you 

were on, and there was a huge sense of frustration, as you know, 

wondering where to go to and how do you reconstitute and everybody was alive. These are discussions that have merit obviously because if people had been killed that day in the Congress we would 

have had even more of an idea of how do you reconstitute the Congress, but everybody had that huge frustration of not being able to 

have a Congress at that point in time. 

Mr. Ehlers. 

Mr. EHLERS. I have no questions. 

Mr. BAIRD. May I underscore one point of what you just said? On 

September 11, after the first plane hit the first tower, there were 

people in the second tower who were told wait, stay put and they 

did, and then the second plane came and killed them. It has been 

2 years since that day and this body has not substantively acted. 

If it happens tomorrow that we are hit hard, we have left this 

country in a terrible mess. We have got to do something substantive so that if it happens something is out there for the legislatures to act on, and we have failed thus far in that duty. 

So I really want to underscore my gratitude for you taking the 

leadership on this, because once it happens that lots of us are 

killed, the very body that is supposed to solve these problems has 

itself been decapitated, and that is not a situation we want to leave 

this country in. 

Mr. LINDER. Brian, in your proposal for having a Member assign 

the position to another living political figure, do you anticipate a 

time frame before they will have a special election? 

Mr. BAIRD. Very legitimate question. My hope would be, Mr. Linder, that that would be expedited, that you would have a prompt 

election after that, and I would provide that upon appointment that 

person shall serve until such time as a special election can be held. 

So I think you would want to have a special election to replace that 

person. 

Mr. SENSENBRENNER. If I may answer that the Commission on 

Continuity of Government recommended that the appointed replacement Members be able to run in a future special election to 

be held 120 days after a vacancy. That would mean that the appointed Member in many States would end up serving longer than 

a special election under existing law could be held. In Minnesota, 

for example, it is 33 days between the time a vacancy takes place 

and the time a special election is held. And what the Commission 

recommends is that for almost 3 months after a Minnesota election 

can be held under existing State law an appointed Member would 

be allowed to sit. I don’t think that is right. 

Mr. FROST. And I would ask all of you to think back not just to 

what happened on the day of September 11, but what happened in 

75

the week following September 11. We passed significant pieces of 

legislation during the next 7 days dealing with a variety of subjects. And I think that is extremely important that there be a functioning Congress that can address the concerns of the public so the 

public will have confidence in the continuation of our government. 

And it wasn’t just standing on the steps of the Capitol that was important, it was the fact that we came together on a bipartisan basis 

in the days immediately following September 11 and started addressing the problems that were the aftermath of that attack. And 

that is really why I got involved in this entire issue, and I do want 

to commend Mr. Baird for taking the lead, for being the first Member of Congress to speak out on this subject and attempt to deal 

with this. 

We have an obligation to make sure that the House of Representatives can continue to function, and you can’t just say, well, the 

Senate and the President can take care of that. We can’t pass appropriations bills with only one House. Nothing that we do on a 

day-by-day basis can be done by only one House in the government, 

even assuming the Senate was reconstituted immediately by gubernatorial appointment. 

So I underscore the immediacy of this, the significance of this, 

and urge all parties concerned to try and figure out a real solution. 

Thank you. 

The CHAIRMAN. Chairman Sensenbrenner, I want to ask you a 

question. How do you deal with incapacitation? 

Mr. SENSENBRENNER. We leave it up to the States to define incapacitation. So the legislation is silent. Many Members can sign durable powers of attorney pursuant to state law should they undergo 

surgery or lapse into a coma after the surgery. The durable power 

of attorney will allow the person to appoint an attorney, in fact to 

resign for the Member of the House of Representatives, and this 

happened in my State back in the 60’s, when a State Senator 

ended up being incapacitated and the State law was changed to 

allow that. 

The CHAIRMAN. Anybody have any thoughts how you deal with 

incapacitation? 

Mr. FROST. It is an enormous problem because as some of us remember when Gladys Noon Spellman suffered a stroke she was incapacitated for some period of time, and in fact the House had to 

ultimately declare her seat vacant, and we had a special election 

when our colleague Steny Hoyer was elected. But it took an action 

of the House at that point because apparently there was nothing 

in place in Maryland law or even in any other provision of Federal 

law that permitted the incapacity to be determined other than by 

a vote of the House. It is a significant problem that needs to be addressed. I don’t have an immediate answer for it. 

Mr. BAIRD. The proposed amendment I have offered would empower the House to provide procedures by which incapacity would 

be determined. Another issue I have addressed in that proposed 

amendment is that if a person were to regain capacity they could 

resume their post if they regain their capacity prior to the special 

election being held, which I think is reasonable. If you are trying 

to get the House back up quickly and someone is severely incapacitated for a brief period of time, a burn unit, et cetera, when they 

76

are able to return to the House, if a special election wasn’t held 

they could come back, and I think that is desirable. I certainly 

would approve of it. 

The CHAIRMAN. One last question I have. This naming of the successor in your proposal, is that mandated to be secret or can the 

Member tell? 

Mr. BAIRD. It is a great question. My own belief is the proposal 

is moot on that. My own belief is it is desirable that it be secret 

both for security reasons, for political reasons. You don’t want people currying favor. First of all, you don’t want to say, if you will 

sign up on my ticket as my successor if I die, I don’t think you 

want to do that. By nominating a list of several people, you reduce 

the possibility of gaming it. You provide for a security element, and 

I think you would want initially, frankly, to establish a very rigorous tradition that this is kept strictly confidential. 

The CHAIRMAN. Then it is made public? 

Mr. BAIRD. It would be made public at such time—what I would 

propose is we nominate successors and the governors choose from 

that list. So presumably you obviate party manipulation because 

we are probably going to pick people from our own party. My original proposal to the Governors, which I think the chairman is right 

to criticize that proposal, it was made in the few weeks following 

the attack and we didn’t know frankly where Pakistan was going 

to come out on that side of the equation. They had nuclear weapons. What I thought we needed to do is get something out there 

so if we were hit hard there would be some recourse. On reflection, 

I think the Governors already have the chance to appoint Senators. 

Better to let us nominate our successors temporarily and follow 

that by special election. 

The CHAIRMAN. You get a bunch of constant press questions of 

who is in that envelope every year. 

Mr. BAIRD. There are powerful traditions in our country and I 

think you could certainly say for security reasons—we don’t divulge, for example, the budget of the intelligence appropriations 

bill. There are a lot of things we can do with tradition and I think 

we would respect that. 

Mr. SENSENBRENNER. May I make one further point, and that is 

the opponents of the bill that Mr. Dreier and Mrs. Miller and I 

have introduced seem to think that when a disaster happens we 

can wave a magic wand and all of a sudden there will be new 

Members of the House appear. All of us who were here on 9/11 will 

recall that the airspace was closed down. It was impossible to get 

out of town or get into town during the 4 or 5 days after 9/11. 

Many of the Members actually had to resort to driving rather than 

flying. I guess about the limit of where somebody can get to Washington quickly by road if public transportation and the airways are 

closed down and the highways are still opened up is about where 

I live in the Midwest, which is 15 hours away. And if we had to 

reconstitute a House with appointees during this period of time, I 

don’t think anybody from the West would be able to get here. 

Mr. BAIRD. This is a rather specious argument, to be perfectly 

frank. You are not going to get here. This place will be gone. This 

inability to comprehend the power of a nuclear weapon is problematic for us here. An analogy is to London and the Blitz. The sixth 

77

sense that we are going to come back to this very building and 

meet are really not adequate to the threat we face. The simple fact 

is if you identify the people you also want—but you don’t have to 

do this constitutionally. Frankly, constitutionally there are issues 

about whether or not you can convene in another place without 

permission of the other body. We need to address that. We have to 

have people to go there and where they go is of somewhat less importance. 

The CHAIRMAN. That issue ties a little bit into Congressman 

Langevin’s issue which we approved out of this committee last session, to explore that. There was a study, about half a million dollars, to explore voting by electronic means, assuming that for example the terrorists bomb 10 cities, which is projected they possibly could have if they had their way. You had mass confusion 

and, you know, traffic wouldn’t move and you couldn’t take an airplane or train and the building is wiped out, how do you vote, if 

you need to vote if you are in Europe, because all the talk was just 

about if something happened while we were here. We might be 

spread out over the world or the country during a recess and that 

has nothing to do with this bill. But it has to do with the subject 

of being able to vote. 

Mr. Ehlers. 

Mr. EHLERS. Thank you, Mr. Chairman. I just wanted to try to 

clarify something. Mr. Sensenbrenner, you talked about and I 

guess the Commission referred to a case where more than 100 

Members have been killed or incapacitated. That obviously is a serious problem but it is not crucial to the future of the Nation. They 

could be replaced in due course with special elections under current 

law. Did you consider other gradations? You mentioned you picked 

100 as somewhat arbitrary between 1 and 435. What Mr. Baird 

seems to be talking about is the case where the entire campus is 

gone, most of the Members have been killed and so forth, which is 

quite a different situation than losing 100 or 150 Members. Were 

there any gradations considered in the possibilities? 

Mr. SENSENBRENNER. Well, the answer is that we have to pick 

a number between 1 and 435. With approximately a quarter or 

more Members of the House of Representatives gone, we figured 

that that would be a sufficient urgency to have the expedited special election process that is contained in this bill. But again the 

bottom line is that I think you get more legitimacy in having the 

House of Representatives constituted by election even though it is 

a wartime election at a time of devastation than it is to have an 

appointed President and appointed Senate and appointed House of 

Representatives. You know, believe me, the American people 

proved on 9/11 that they will come together, that if there was an 

even greater catastrophe they will come together even quicker to 

work to make sure that self-government, which has been the hallmark of this country since the American Revolution, will be preserved. 

Mr. EHLERS. All right. I appreciate that. It seems to me that 

there is a major distinction here between 100 or if, for example, we 

were in the process of voting in the House and a nuclear weapon 

would hit we would lose on average about 425 to 430 members and 

in fact the entire House is totally disseminated at that point, and 

78

I can understand the argument for rapid action if that happens. I 

don’t think there is any problem with either the expedited special 

election or perhaps even normal special elections in the case where 

it is 100 or 150. But I understand you did not consider the total 

catastrophe case. 

Mr. SENSENBRENNER. I believe the 100 number includes the total 

catastrophe case. 

Mr. EHLERS. You would not make any differentiation then? 

Mr. SENSENBRENNER. No. The thing, Mr. Ehlers, that I think is 

important, is that if a significant number of Members of the House 

are killed then it is important to fill those seats by election as 

quickly as possible. 

Mr. EHLERS. I am not even sure we need the expedited elections 

until you get a sizable number, but thank you very much for clarifying that. I appreciate that. 

The CHAIRMAN. Mr. Larson. 

Mr. LARSON. Thank you. I just have one follow-up question. And 

clearly since I have been a Member of the United States Congress, 

there have been at least a couple of occasions where more than 100 

people haven’t been present when we voted. I want to get back to 

this issue of time and the crisis around time. And the reason I 

asked before about compromise is that when you sit and listen to 

the two proponents, both proponents of the bill who seek the sacred 

nature between the people and their elected officials in making 

sure that Congress hangs on to that cherished manner in which we 

select people, and then to the opponents who are concerned overall 

about protecting the cherished nature of the republic by making 

sure that it is constituted immediately in order to carry out these 

functions, the reason I asked if there is a compromise is because 

it seems to me—let us say, for example, if a constitutional amendment were proposed and adopted it would take 2 years for that to 

take effect, I believe, or approximately. By the same token, there 

is valid and legitimate concern that an election process, however 

expedited, may not be, as Mr. Sensenbrenner has pointed out, the 

most perfect instrument as well. In many respects, don’t you need 

both? And inasmuch as the proponents of a constitutional amendment still adhere to elections where people would be—the Congress 

would be reconstituted but provide the time for it to take place in 

an orderly fashion. And yet arguably, given the state of affairs we 

are operating in today, that a calamity could strike any time and 

a constitutional amendment would not have been ratified by the 

number of States. 

So my question still is, is there a compromise or, minimally, we 

are on the House Administration Committee because of our cognizance over elections, would the Judiciary Committee entertain 

discussions of this issue of a constitutional amendment? 

Mr. SENSENBRENNER. Mr. Larson, the Judiciary Subcommittee on 

the Constitution has already had a hearing on the issue of a constitutional amendment. You know, whether or not there can be a 

compromise, this is going to be very difficult to compromise on because you are either for an elected House and maintaining the 

House of Representatives as the Peoples’ House or you want to 

have appointed successors. And once you get to the issue of appointed successors, then you start arguing over how the successors 

79

would be appointed. And the Continuity in Government Commission, you know, basically drafted their amendment in such a broad 

manner that this will end up being a question of debate in the Congress. And I would guess it would be a rather intense debate between whether there should be a gubernatorial appointment or 

whether there should be a deceased or incapacitated Member designation. 

I can say that from my own experience in Wisconsin 40 years 

ago, that the whole business of Members designating their temporary successors in that case in the Wisconsin legislature unleashed a firestorm of public opposition, and as a result the matter 

was quickly dropped and never has returned. And with gubernatorial appointments, at least the four of us who are here that 

represent States where the Governor is of an opposition party, I 

don’t want my Democratic Governor appointing a Democrat as a 

successor. I am sure Mr. Frost doesn’t want his Republican Governor appointing a Republican as a successor. And in those States 

where Senate appointments were restricted to the same party, I remember when Senator Neuberger of Oregon, a Democrat, died in 

the 60’s, Republican Governor Mark Hatfield appointed a Democrat 

in his upper 80’s as the interim successor because he was required 

to appoint a Democrat, and having a man that was arguably in his 

dotage being one of the two United States Senators certainly did 

not serve the best interest of that State. 

Mr. LARSON. Mr. Baird. 

Mr. BAIRD. You raised a very good question about the issue of 

how long it would take for this to take effect. My understanding 

and part of why I emphasize again how important it is that we act 

as a body, once an amendment were to pass the House and Senate, 

it is then available to be ratified by the States. And while traditionally it has taken a long time to actually get amendments fully approved, I think in this circumstance you could fairly rapidly convene the legislatures. First of all, I think it is in the States’ best 

interest to have a mechanism by which they have representation 

in the House of Representatives, so they have a self-incentive to do 

that if it is a sound proposal. If we were to pass the resolution, it 

is then available for ratification. And if we were to be wiped out 

next week, all the States could convene their legislatures and ratify 

and we could get a three-quarters ratification promptly and it could 

become law and you could conceivably within a week have nominees, assuming we were bright enough to create a list. 

Mr. LARSON. Conceivably if Mr. Sensenbrenner’s bill was in effect 

and concurrent with an ongoing constitutional amendment, though, 

wouldn’t it be more plausible that immediately his bill would take 

effect while the constitutional amendment was therefore being ratified? Isn’t his bill in some respects a fail-safe while you are waiting 

to have the States go through their proper ratification process just 

like we would want the appropriate time for an election to take 

place? 

Mr. BAIRD. Let me reiterate, neither myself, Mr. Frost, the Continuity Commission has opposed the notion of having elections. We 

are in favor of that. We want them, however, to be genuine elections. And for the reason I articulated earlier in terms of where the 

threshold is, what happens if intervening variables extend your 

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time period? The best bet is to do something promptly. I see it the 

reverse. We already have mechanisms to elect people in special 

elections. What we do not have today is a mechanism to replace 

people in the time of catastrophic losses of Members. The more urgent matter is to put that mechanism before the body and give the 

American people an opportunity. 

Mr. LARSON. I agree with you, Mr. Baird. But my point is this, 

and while that process is evolving as it has been—the scenario has 

been laid out before us, in the event something has happened, isn’t 

it wise to have Mr. Sensenbrenner’s proposal, an expedited process 

addressing the number of concerns that you have, given that the 

more immediate effect needs to be addressed as well, but that may 

take time for us to get to——

Mr. BAIRD. Providing we don’t pat ourselves on the back and say 

we have solved the problem. Providing we don’t send a message to 

the American people, stay in that second tower, everything is 

under control. 

Mr. LARSON. I am saying concurrently. 

Mr. FROST. And let me if I could, I would like to address one 

issue raised by Mr. Sensenbrenner. If we did not provide that the 

Governor has to appoint a Member of the same party as the person 

who was killed and we might for various reasons not so provide, 

I would rather my district be represented by a Republican than to 

go without representation for 2 or 3 months in a time of crisis. 

Mr. LARSON. I found Mr. Sensenbrenner’s point engaging, as well 

as has been all the conversation, and I mean that sincerely. I think 

this is a real legitimate problem that Congress has got to sink its 

teeth into. But I could envision as well where all three aspects took 

place. I would lean towards the legislative body. After all, we were 

a Continental Congress first appointed by our legislative bodies to 

assemble and then appointed by legislative bodies to form the Constitutional Convention. But there is a question that has to be 

raised and Mr. Frost raised earlier about a simultaneous hit on legislatures or the inability for the legislature to convene or different 

Houses that are unable to be constituted or come to grips. Say it 

happened to be in, we will say, Texas or California, but then if 

there was a specific time limit or trigger mechanism where the 

Governor would then come into play or providing for opportunities 

for that appointment during that process, you would have gone 

through a thoughtful process where you are considering all of these 

basic alternatives and not ruling out one or the other, but adhering 

to a process that in fact we adhered to at the very start of the formation of this Nation. 

The CHAIRMAN. Another question on incapacitation, just to clarify, Chairman Sensenbrenner or anybody else who would like to 

comment, but in your bill does the State declare incapacitation? Is 

that what you said, the State declares incapacitation. 

Mr. SENSENBRENNER. Mr. Chairman, my bill is silent on the 

question of incapacitation and State law is the governing law on incapacitation. And most States have amended their law to allow 

anybody to sign a durable power of attorney. A Member of Congress signing such a durable power of attorney would appoint the 

attorney; in fact, make decisions which would include a potential 

resignation. 

81

The CHAIRMAN. A State would declare incapacitation. Who vacates the seat though? The State doesn’t vacate the seat. Congress 

would have to vacate. 

Mr. SENSENBRENNER. With a durable power of attorney, in fact, 

that was appointed by the Member, the State would have the 

power to resign the Member’s seat and, you know, that would act 

as a vacancy. 

The CHAIRMAN. It would have a bit of a strange twist in the 

sense that the House vacates House seats now. 

Mr. SENSENBRENNER. In the Gladys Noon Spellman case, she 

had a stroke 2 days before the election and fell into a coma and 

was reelected. She was never sworn in at the beginning of that 

Congress, and the House passed a resolution declaring the seat vacant I believe 45 days after she failed to appear to take the oath 

of office. And that resolution was placed before the House after extensive consultations with both Representative Spellman’s family 

as well as her physician. 

The CHAIRMAN. And your bill, doesn’t the Speaker also announce 

vacant seats? 

Mr. SENSENBRENNER. The Speaker can announce a vacancy 

based upon incapacitation to count toward the 100. 

The CHAIRMAN. Thank you. 

Mr. LARSON. What happens if the Speaker has been struck? 

Mr. SENSENBRENNER. If the Speaker has been struck, the committee that Mr. Frost and Mr. Dreier and Mr. Cox worked on 

amended the House rules. And House Rule I(8)(b)(3) says in the 

case of vacancy in the Office of Speaker, the next Member on the 

list that has been provided by the Speaker shall act as Speaker pro 

tempore until the election of a Speaker or a Speaker pro tempore. 

Pending such election, the Member acting as Speaker pro tempore 

may exercise such authority of the Office of Speaker as may be necessary and appropriate to that end, and that would include making 

the determination that 100 seats would be vacant. 

Mr. LARSON. That is very logical and I applaud them. Does that 

take into consideration a quorum that would be assembled? 

Mr. SENSENBRENNER. The quorum has already been defined as a 

majority of the Members duly sworn, seated and living. 

Mr. FROST. That is the clear precedent and that is the dilemma 

that we face, because under the clear precedent a quorum could be 

a very, very small number. And my concern, as I have expressed 

earlier as well as others, would be the confidence or lack of confidence that the public would have in a House being convened with 

a very small number of people. 

The CHAIRMAN. Any further questions? I surely want to thank 

the panel for your time. 

Mr. LARSON. Excellent. 

The CHAIRMAN. Worthwhile and fascinating panel. Thank you, 

and we will move on to the second panel. I want to thank the panel 

and thank you for your patience. I want to introduce the panel. 

Joining us is the Honorable Mary Kiffmeyer, the Secretary of State 

from Minnesota and the current President of National Association 

of Secretaries of State. We surely do appreciate your work, Secretaries of State Association, for the great work on the Help America 

Vote Act, by the way, as we have talked about it with the ConVerDate jul 14 2003 10:55 Nov 06, 2003 Jkt 090083 PO 00000 Frm 00083 Fmt 6633 Sfmt 6602 E:\HR\OC\D083A.XXX D083A
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gresswoman from Michigan and also following that I want to thank 

Doug Lewis, the Executive Director of Election Center, a national 

nonprofit organization serving elections of voter registration, also 

helped work on Help America Vote Act. We got Donald 

Wolfensberger, the Director of the Congress Project at the Woodrow 

Wilson International Center for Scholars, and he is no stranger to 

the U.S. House. And also Mr. Thomas Mann, the W. Averell Harriman Chair and Senior Fellow in Governance Studies at the 

Brookings Institution and a senior counselor for the Continuity of 

Government Commission. And Dr. Norman Ornstein, Resident 

Scholar at the American Enterprise Institute and also senior counselor for the Continuity of Government Commission. 

Congressman Dreier wanted me to ask the last two of you which 

one wanted to be played by Woody Allen and which one by Don 

Knotts. 

We appreciate your time being here on an important subject, and 

we will begin with testimony from the Honorable Secretary of State 

Mary Kiffmeyer. 

STATEMENTS OF THE HON. MARY KIFFMEYER, THE SECRETARY OF STATE FOR MINNESOTA; DOUG LEWIS, EXECUTIVE DIRECTOR, ELECTION CENTER; DONALD 

WOLFENSBERGER, DIRECTOR, CONGRESS PROJECT, WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS; 

THOMAS MANN, W. AVERELL HARRIMAN CHAIR AND SENIOR 

FELLOW IN GOVERNANCE STUDIES, BROOKINGS INSTITUTION; AND NORMAN ORNSTEIN, RESIDENT SCHOLAR, AMERICAN ENTERPRISE INSTITUTE 

STATEMENT OF THE HON. MARY KIFFMEYER 

Ms. KIFFMEYER. Thank you very much, Mr. Chairman, Mr. 

Larson, and members of the committee. Thank you for allowing me 

the opportunity to provide insight for this hearing about how Congress would fill vacancies in the House of Representatives if a national disaster were to take place. 

On the morning of Friday, October 25, 2002, the State of Minnesota and the Nation lost U.S. Senator Paul Wellstone to a plane 

crash. The State was in mourning but quickly had to look forward 

to the future of the Senate seat, the State and the country. Election 

Day was less than 2 weeks away. The day of Senator Wellstone’s 

death was full of anxiety for Minnesotans, questions abounded. 

Would the election proceed, would there be a replacement for Senator Wellstone on the ballot? Would absentee voters who already 

cast their ballots be able to change their votes? National media descended on Minnesota seemingly to wait for our election system to 

fail. It did not. 

Minnesota Attorney General Mike Hatch and I worked through 

the night and weekend to implement rarely used election provisions and to inform voters. In those 10 days preceding Election Day 

a replacement Democratic candidate was found, a supplemental 

ballot was produced specifically for the U.S. Senate race, replacement absentee ballots were made available and voters were informed of the special accommodations to expect at the polling 

83

places. The important thing was that we had provisions to deal 

with this situation. 

On Election Day, balloting went off as usual. Because our modern ballot scanning equipment could not be reprogrammed in time 

to process the supplemental U.S. Senate ballot, we relied on the 

old-fashioned but nevertheless functional method of counting ballots by hand. The delay in the election results caused by this was 

just a few hours. I think Minnesotans agreed that the speed in 

counting was not an issue; accuracy was. One national news show 

had called to reserve some time in my schedule to interview me at 

my office the day after the election, but only if there were problems. I was there but they didn’t need to show up. 

One of Senator Wellstone’s political supporters wrote afterwards 

that our efforts ensured the people a just outcome. 

There is no such thing as a perfect election, even in the best of 

circumstances. Certainly in 2002 we faced extraordinary challenges 

in Minnesota. We were concerned about voters understanding the 

process and we were concerned about absentee voters who had a 

very short time to receive and submit their ballots. Still, I think 

the election was conducted with the highest degree of professionalism possible under the less than perfect circumstances. The 

thousands of election judges across our State made it possible. 

The four pillars of voter rights, accuracy, access, privacy and integrity, need to be strong and in balance in order for the election 

system to be as good as it can be. These pillars can be maintained 

even in a short time frame and I think we showed that in Minnesota in 2002. 

In the end, Minnesota had the highest voter turnout in the Nation in 2002 and the highest in our own State in a nonpresidential 

year since 1954. Most importantly, we elected a new U.S. Senator 

and a representative of the people was in place to tend to our 

State’s business in Washington. 

Based on last year’s experience, I am confident that in Minnesota 

we could conduct expedited special elections within the proposed 

21-day period in the direct aftermath of a catastrophic terrorist attack on Congress. Minnesota’s current special election procedure is 

very close to this proposed timetable, calling for a special election 

to take place within 28 days after the Governor orders it, and the 

order must come within 5 days after the vacancy occurs. Moreover, 

the proposed 21-day period is significantly longer than the period 

in which we conducted the 2002 U.S. Senate election in Minnesota. 

To be sure, though, our experience in Minnesota does not exactly 

mirror the situation that would be created by a national disaster 

such as you are seeking to address here. We knew that an election 

was approaching, for example, so that poll workers had been enlisted to work on the date when the expedited U.S. Senate election 

was to take place. Voters already were expecting to go to the polls 

and were preparing to vote. The political parties already had their 

‘‘get out the vote’’ operations in place and were engaged in the 

usual late campaign strategies. 

Nevertheless, from our experience in Minnesota, I would suggest 

there are four basic practical issues to consider if you hold an election in a short time frame: Having laws in place to deal with these 

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forming candidates and political parties. We were thankful in Minnesota we had laws to deal with the situation we faced last fall. 

Our laws clearly delineated what was to take place so that stakeholders could have confidence in all communications that flowed 

from the law and our implementation of it. 

From the perspective of Minnesota’s 2002 U.S. Senate election, 

we learned that it was most important to communicate to the public the aspects of the election that would not change. It also was 

important to assure voters that the election process would be orderly, methodical, and that the outcome would be fair and accurate. 

Election information was most pressing for people who had to vote 

by absentee ballot. A short election time frame is not user friendly 

for absentee voters, and Minnesota’s law made it even less so. 

We learned that with adequate information and ongoing communications provided to local election officials we could count on polling place staff to step up their efforts in a time of need. I am confident that our local election officials would overcome the challenge 

of any national crisis. 

I would suggest that any specifications you make regarding an 

abbreviated election time frame should be communicated clearly to 

the political parties. In Minnesota, the Democratic Party’s process 

for finding a replacement candidate on short notice was found to 

be rather inadequate for allowing as full a campaign as might have 

been desired by the voters. Whatever the machinations the parties 

might use, a primary or other process, to name candidates in an 

expedited election process, they should be made fully aware of their 

responsibility to make their party provisions compatible with the 

provisions you set forth here. 

I would suggest that the Federal continuity law should be similar 

to Minnesota’s law specifying who decides when the process begins, 

who initiates the process and when the 21-day timetable begins. I 

would also suggest that you address the absentee voter issue, providing guidance ahead of time so that whatever you decide everyone involved would know what to expect and know that they must 

operate within the parameters you set forth. 

Again I want to underscore that election officials, political parties 

and stakeholders would benefit greatly from a process clearly delineated in the law and voters could be sure that their rights are meticulously upheld should it be necessary to implement it. 

Elections are the cornerstone of our republic, and I believe that 

Americans’ right to vote for their representation is of the utmost 

importance. Especially in a time of crisis, Americans should know 

that they can turn to the fundamental rights guaranteed in the 

U.S. Constitution for strength, justice and continuity. 

Thank you again for this opportunity to address you today. I 

commend you for having the foresight to deal with this issue.

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The CHAIRMAN. Thank you for your testimony. 

Dr. Ornstein.

STATEMENT OF NORMAN ORNSTEIN 

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

to you and this committee for grappling with this issue earlier than 

almost anybody else, as you did with your early hearing on the 

questions of an E Congress and also relating to some of these other 

issues. In the first 2 years just about after September 11, we had, 

really, your hearing and one in the Judiciary Committee where it 

was made clear early on that that was it, there was going to be 

one hearing and then they would close the door on consideration 

of any of these other issues. Two years later this is one glaring 

area that we have not adequately addressed. This committee has 

done its part, and I am glad that you are doing more. 

I would like to emphasize just a few things in my time and some 

of them related to the testimony that you had on the first panel 

and your questions as well, Mr. Chairman. 

The first and most significant point is this: As Mr. Sensenbrenner himself stated flatly, his legislation does nothing to deal 

with the problem of incapacitation. He would rely on State laws involving making seats vacant. 

Let me turn to a real life scenario here. You will recall, no doubt 

extremely well, when the House with many Members in a near 

panic got out of Washington when there was a fear that the anthrax attack that had hit the other side of the Capitol might be 

moving over here. What we know in this post-9/11 world is that the 

danger of widespread incapacitation may be greater than the danger of widespread death, although they are both there. But we are 

talking about incapacitation in this case that might involve large 

numbers of Members in burn units for 2 months, 3 months, 4 

months, 6 months or, in the case of an anthrax attack, sarin gas 

attack or maybe a quarantine because of smallpox, Members being 

out of pocket for weeks or months at a time. Are we going to say 

to those people who are victims of a terrorist attack, you lose your 

seats, you can’t come back, somebody else has been elected in your 

stead? That is not an adequate answer. And the glaring problem 

of this bill beyond the specifics of the mechanics that I will get to 

and my colleagues will get to in a minute is that this does nothing 

to address what might be the largest problem. 

We can argue about what is under the Constitution a quorum of 

the Congress. I and many of my colleagues are skeptical of the notion given the plain language of the Constitution that a quorum is 

half the Members, that the parliamentary interpretation that it is 

half of those who are sworn and living is adequate or not. But if 

you have more than half the Members in intensive care units for 

a couple of months, you can’t have a quorum even under that interpretation. So that must be dealt with, I believe. And the only way 

to deal with it is through a process of interim emergency appointments. 

One other point, Mr. Sensenbrenner said that the Continuity of 

Government Commission had said that elections should be held in 

120 days and, in effect, that if you had appointments and had elections before that time, the people who were elected wouldn’t get to 

89

serve until that point. That is a misreading of the Commission report. The Commission believed and we believe that a 21-day period, 

even a 2-month period, and this was true of the working group as 

well, as they look at this in detail, one-size-fits-all for the States 

is simply not practical. Not all States are like Minnesota. I applaud 

Secretary of State Kiffmeyer for what she did in Minnesota. Of 

course it is not as difficult if you have an election already scheduled 10 days or 3 weeks afterwards. 

And we now have, by the way, a living example. We don’t have 

to look any further than California to see what happens when you 

have an election that isn’t called at a regularly scheduled time 2 

months after candidates have been certified for the ballot with a 

long and laborious process of more than a month before that time, 

and you can’t find an election official in California who won’t tell 

you that they face a catastrophe on their hands. It is not enough 

time. There are ballot companies, and we only have a small number in the country to print limited ballot stock, have been working 

night and day just to get the ballots available. We have seen what 

happened with challenges in the courts. We should expedite elections, but our provisions in the Continuity of Government Commission would have appointments exist only until under expedited special elections somebody is elected to fill the post. And our provisions for incapacitation would leave it to the individual Member 

who is incapacitated to return the instant that that individual was 

ready to return. So the appointments could not be made in a capricious or political fashion and people couldn’t be shut out of their 

own offices. 

There are ways for us to deal with both of these issues. These 

are not mutually exclusive proposals. What Mr. Larson suggested 

is absolutely true. We should be able to compromise on these. We 

can set a threshold for emergency interim appointments at a very 

high level. And frankly I want to set it at a high level. Appointments to the House should not be routine things. And as Mr. 

Ehlers suggested, this is something that should occur only under 

the most devastating of circumstances. Under these conditions we 

should move to expedite elections as much as we possibly can. But 

it is utterly unrealistic to imagine that more States would be like 

Minnesota or that we should mandate for every State same day 

voter registration as Minnesota has, something that you grappled 

with when you considered voter or election reform or other provisions for all the other States, that under these conditions of emergency which might very well hit the States that any of these things 

could take place. 

Moreover, to suggest that the Speaker will make this determination when we may not have a Speaker—and I believe, by the way, 

that Mr. Sensenbrenner has misread the House rule which says 

that a Speaker pro tempore shall exist for the purposes of electing 

a new Speaker and be given the powers for that purpose alone. 

That is the plain language of the rule. This is not a Speaker pro 

tempore who is in a line of succession appointed who then has the 

full powers of the Speaker to act in this fashion. 

There are gaps in this legislation that are glaring and those that 

you need to address. Please move forward with expedited elections. 

Do it in a reasonable time frame. But if it precludes doing anything 

90

about incapacitation or having no House for months at a time, then 

we are failing in our responsibilities to the American people. 

Thank you. 

[The statement of Mr. Ornstein follows:]

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The Chairman. Thank you for your testimony. 

Mr. Lewis. 

STATEMENT OF DOUG LEWIS 

Mr. LEWIS. Congressman Ney, I think let me first start off by 

saying, one of the things that we learned as you and I and the others worked on election reform when we were doing this was that 

too often our testimonies, our feelings, our wants and desires in 

terms of election reform were all trapped by our own experiences. 

We tended to think very narrowly as to what happens in our State 

or in our locale and then say that that can translate somehow nationally. One of the things that I have learned very carefully in this 

job is that one size doesn’t fit all most of the time. And when we 

work with these issues, the things that we are going to look at and 

talk about on your behalf and with others is the question can we 

do it in a very short time span, and the answer is yes. I mean, let 

us face it, humans are going to respond to a crisis. The question 

you have to go beyond is should you do it in a very short time 

span? You know, that is the real response here. And somewhere in 

here, you have got to figure out and I have no ax to grind on any 

of this, you pick whatever you want. 

What you asked me here to tell you about was whether or not 

we can do it safely and securely under what we know to be American democracy, and the answer is probably not. If you are going 

to look at the tradition of the House not wanting to obviate its own 

tradition that someone always has to be elected here, then you also 

have to look at the tradition of American elections and what American elections are about. Well, the genius of American democracy 

is that we have full faith in the process. And if we destroy the key 

elements of the House, do you then have full faith in the election 

that results from it? And that is where you have to come back to 

and what you look at. 

Our process is complex. It takes time. It is complicated. It sometimes is very inefficient, but it works and it works because people 

fundamentally believe in the way we do things. And so hopefully 

any conclusions that you come to, any answers that you come up 

with really look at maintaining the public’s ability to have faith in 

the process. 

In other words, do we suspend democratic processes in order to 

promote a great democracy? That seems to be an irony that is almost inconceivable to handle and to work with. We know we 

learned some lessons of 9/11 because New York had an election 

scheduled that day. New York had to stop their election. And in 

order to restart the election at a later time, they first had to know 

what resources are available to us. What things work? There are 

some answers that were given here even today in the testimony 

that make presumptions that may not be true. None of us probably 

thought much about the power grid going down until it went down. 

If it goes down nationwide, how do we have electronic voting? How 

do we do that? How do we vote by the Internet or any other means 

in order to make this work? 

So there are things here that we have got to look at in terms of 

not making assumptions that we are going to have conditions the 

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way we have always had them. We have to look at how do we do 

the process. 

Additionally, Congress has to look at not just what it changes in 

its own laws, it must say clearly that it is going to rewrite the laws 

of States in terms of special elections to replace these folks because 

you are going to have to set out very clear determinations on State 

rules about registration that all now are obviated by the Federal 

need. So you have to spell that out so judges will interpret it the 

same way you intended so we end up with elections that we are 

able to conduct. Certainly most of the Nation’s elections administrators when it comes to—push comes to shove is a 45-day minimum. Whether or not certain—Secretary Kiffmeyer, she can do it 

in 33, I think Kentucky told us 35, but everybody else wants more 

time than that. Can we compress some of that time? Maybe. 

The question again gets back into what are you defining as an 

election? You have to define that before you define the rest of these 

procedures. Once you know that, it seems to us that every day you 

can give us beyond 45 helps us have a more valid election that the 

public will buy into, live with, understand and have some appreciation for. 

Certainly in the written testimony, which I am not going to go 

through all the written testimony, there has to be some process for 

candidate qualification. However that is determined, there has to 

be a process there that the voters will believe in and live with. 

There needs to be some new considerations for voter registration. 

Do we do same day registration or cut off registration? How are we 

going to do that? Why are we going to do that? And if you set it 

for this principle for doing special elections, understand that if you 

all say that can be done for emergency wartime powers, there is 

going to be a whole lot of folks saying why don’t we do that nationally in all of our States and national election processes. Certainly 

you have to have time for absentee ballots or just decide we are not 

going to do absentee ballots. You have to have time to get those 

ballots out and time to get the ballots back and time to count those 

ballots, and the question is do we have that? 

Certainly Congress needs to think about if it is going to do all 

this in a way that we can commandeer within the States other employees so we are not necessarily having to rely on volunteers to 

come to us to be poll workers; so we can commandeer State, city 

and county employees to assist us in the election process and 

overwrite all the labor laws that prevent us from doing that. And 

that is another consideration. 

We thought about could we do elections through the U.S. Postal 

Service. That presumes A, there is a Postal Service to work with. 

And we asked the States of Washington and Oregon to tell us could 

they do an election in 21 days by mail so that the entire Nation 

may be able to do it by mail. They said no. In fact, they told us 

that they would need more time than we would in terms of in person elections, that they need roughly 54 days in order to make this 

go in terms of ordering the ballot paper and setting up the postal 

operations to make this work. 

Finally, I think one of the things we need to do is to look also 

at what you are going to do with judges. You are going to have to 

have a setup so that every lawyer who decides to sue because his 

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or her candidate didn’t get their way in this particular instance—

and folks, we all think that is not going to happen but how many 

predicted that there were going to be 150 candidates in California 

for Governor? You are going to have people who want to be candidates and want to adjudicate whether or not they are legally entitled to be that candidate. And so you need to think that through. 

I think one final note of caution is if we are looking at a national 

disaster, let us not create a second disaster by forcing an election 

that cannot happen within the time frame. Thank you. 

[The statement of Mr. Lewis follows:]

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The CHAIRMAN. Thank you very much. Next we will hear from 

Thomas Mann. 

STATEMENT OF THOMAS MANN 

Mr. MANN. Thank you very much, Mr. Chairman and Ranking 

Member Larson. As someone who has worked with the Commission 

on the Continuity of Government over the last year, I recognize 

fully the complexity of the problem but also the seriousness of it, 

and I have to tell you I have just been very disappointed that 2 

years have passed without a substantial response of what is a glaring hole in our Constitution. I interpreted from the first panel that 

expedited hearings before the House Judiciary Committee are not 

very likely. 

Mr. Chairman, I ask that my prepared statement as well as the 

report of the Commission on the Continuity of Government be 

made a part of the record of this hearing. 

Mr. CHAIRMAN. Without objection. 

[The information follows:]

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Mr. MANN. I have made four brief points. Let me say that I, not 

surprisingly, associate myself with the comments that Norm 

Ornstein and Doug Lewis have made before me. 

Simply four points. Number one, in an era of terrorism and 

weapons of mass destruction, not an era of Blitzkrieg bombing in 

London, the continuity of American constitutional government cannot be assured. Congress has an institutional responsibility to act 

and to act credibly and expeditiously to remedy this problem. 

Number two, H.R. 2844, mandates a procedure for special elections in extraordinary circumstances that would, in my view, sacrifice democratic substance for democratic form. Listen, I take seriously the statements that this is the people’s House and that every 

person who served as a Member has been elected. That is a sound 

principle of republican government that ought to be a cornerstone 

of representation in the House. 

That is not the issue here. The issue is how best to maintain that 

principle while at the same time acting responsibly to provide for 

the continuity of Congress in the wake of a catastrophic attack, 

leaving mass vacancies and severe injuries. 

My view is that H.R. 2844 has made the wrong choice in balancing these interests. They have constructed a 21-day timetable 

for special elections that would put an enormous strain on voters, 

candidates, and election administrators, in my view a strain so severe that it is likely to drain this remedy of any democratic legitimacy. 

Your committee, having worked through the Help America Vote 

Act, is especially sensitive to the practical problems of election administration. I won’t review those here. Doug has discussed some 

of them. 

What I would say is that the Federal mandate on State and local 

election administrators provided for in H.R. 2844 is burdensome, 

expensive, unrealistic, and very likely to fail in its implementation. 

But, ironically, the provisions of the bill place an even more serious 

burden on the voters than they place on voters and candidates. 

Genuine democratic elections require reasonable opportunities 

for potential candidates to seek their party’s nomination, to develop 

and disseminate their platforms, and for voters to receive enough 

information about the competing candidates to make an informed 

choice. My view is that the 21-day timetable, which leaves a bare 

7 days for the general election, makes it verily impossible to satisfy 

those requirements. 

Mr. Chairman and Mr. Lawson, members of this body should not 

delude themselves into thinking that any form of election is preferable to temporary emergency appointments in the wake of a national catastrophe. Countries all over the world have elections. 

North Korea, Saddam Hussein’s Iraq, the old Soviet Union. And 

many others have elections where they even have competing candidates. But the elections are structured in a way in which it is impossible to have any real democratic substance. We are a constitutional democracy. We have requirements about elections and their 

aftermath that could not be fully taken into account with this provision for expedited special elections. 

Point number three, let’s assume it all worked. Let’s say this bill 

got every one, all of those vacancies replaced in 21 days. Ironically, 

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even if it worked they would not address the most serious continuity problems associated with death or incapacitation of a large 

number of Members, because, first of all, as several people have 

said, including Mr. Baird and Mr. Frost, the critical functions of 

Congress in the weeks following that catastrophe could not be fulfilled, because there would be no functioning House of Representatives. 

To reconstitute the body in a month or 6 weeks doesn’t address 

that. And, secondly, as Norm discussed, it doesn’t deal at all with 

the problem of incapacitation. He said it well. I won’t repeat it. 

Let me conclude with this point. Mr. Larson said, is there a compromise? The answer is yes, there is a compromise. But to have a 

compromise, it has to have two parts. One, there has to be a constitutional provision that provides for emergency temporary appointments, emergency temporary appointments that can be combined with an effort to improve the special elections process. That 

doesn’t just mean speeding it up to 21 days. I think to the contrary, 

your committee having so much expertise on elections and the administration of elections will find that the one size fits all may not 

be the best way to go here. 

The process of improving that special elections process has begun 

with the working group. You can contribute to that. But I beg of 

you, do not come forward, report out a bill that is a revision of the 

one submitted by Chairmen Sensenbrenner and Dreier alone, without having assurance that a constitutional amendment is moving 

along, because what that will effectively do is take any life out of 

a genuine solution to a very serious problem facing the country. 

Thank you. 

The CHAIRMAN. Thank you. 

Mr. Wolfensberger. 

STATEMENT OF DONALD WOLFENSBERGER 

Mr. WOLFENSBERGER. Thank you, Mr. Chairman, members of the 

committee. I ask that my prepared statement and the appended 

materials be included in the record in full. I will summarize my 

statement. 

I am grateful for this opportunity today to testify on H.R. 2844, 

the Continuity of Representation Act of 2003. I strongly support 

the rationale behind this bill, which is to provide for expedited special elections to fill House vacancies in extraordinary circumstances 

as an alternative to a constitutional amendment that allows for the 

appointment of temporary Representatives. 

In my considered opinion, such a constitutional amendment 

would be a dangerous corrosion of the very cornerstone of our governmental edifice, and that is its dependence on popularly elected 

representatives. If you take that away, even for a brief period, you 

will seriously undermine the legitimacy and moral foundation of 

our representative democracy. 

You do not have to be a constitutional scholar or a political scientist to understand just how central the nature of this institution 

is to the strength, endurance and resiliency of our constitutional 

framework. You are the first House of the first branch of our Federal Government. The framers did not put you at that point in our 

founding document by accident. You are the only members of this 

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government who, under any and all circumstances, must be elected 

directly by the people. 

Even a grade school student learns early on that the moral underpinning of a democracy, as enunciated in the Declaration of 

Independence, is that the government derives its just powers from 

the consent of the governed. If you remove that element of consent, 

you jeopardize the confidence of the people, and the justness of governmental decisions and actions. 

This is the last thing that you would want to risk at a time of 

national crisis and confusion that would trigger an emergency replacement procedure for House Members. 

That is why it is all the more imperative that you reconstitute 

the House in a constitutional manner as intended by the framers, 

through special elections, and not through a new constitutional 

mechanism that completely subverts that intent. 

Turning to the specifics of H.R. 2844, obviously the two main 

questions this committee must address are what should the threshold be of vacancies to trigger expedited special elections, and what 

time period should be allowed for those elections to take place? 

The Sensenbrenner-Dreier bill has a loss threshold of more than 

100 Members. I happen to favor a much higher threshold of a majority of Members, since that is where the quorum requirements become a real problem, and I think that it should be very severe for 

these expedited elections to be imposed. 

H.R. 2844’s 21-day timetable for special elections is the greatest 

point of controversy. I understand that a large number of State 

election officials have already weighed in that this is not a realistic 

time frame to prepare for an election. While I am not an elections 

expert, I believe a 2-month period; that is, 60 days, is probably 

more practical and realistic. 

Can this Nation survive for 2 months without a full House? I 

think it can. President Lincoln did not call Congress into special 

session until July 4th of 1861, nearly 3 months after the Civil War 

broke out on April the 12th. Congress still managed to set things 

right and enact a raft of war legislation over the ensuring months 

before the special session adjourned. 

The proponents of a constitutional amendment claim that such 

an instantly reconstituted House is necessary to do such things as 

declare war and to appropriate emergency funds. I would reply that 

if the U.S. is attacked and a major part of the Congress is wiped 

out in the process, you are already at war and no declaration is 

necessary. The founders recognized the right of the President to act 

unilaterally in response to a direct attack on the country without 

a declaration of war. 

As to emergency funding, that can easily be provided by statute 

as standby authority for the President in the event that Congress 

cannot convene immediately. I notice that the Commission has recommended this as well. The replenishment of the House by duly 

elected representatives of the people, even if it takes a couple of 

months, is more important than allowing laws to be written by 

temp Reps with no direct authority from the people. 

Finally, let me say a few words about the proposed constitutional 

amendment recommended by the Continuity of Government Commission. The Commission seems to endorse a concise 36-word 

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amendment found on page 24 of its report that leaves to Congress 

the power to regulate by law the filling of vacancies that may occur 

in the House and Senate if a substantial number of Members are 

killed or incapacitated. Now, that is very broad authority. I seriously doubt that many States would ratify such a blank check. It 

is buying a pig in a poke. Even if Congress does contemporaneously 

enact such legislation at the time that it submits a constitutional 

amendment to the States, there is nothing to prevent it once the 

amendment is ratified from changing the law. In fact, the Commission intimates such later modifications may be necessary based on 

experience with the law. 

The Commission favors either allowing Members to designate in 

advance who should succeed them, or to permit the Governors of 

the States to pick their successors. Under the first option, Members 

could designate their spouses, their firstborn, their nearest living 

relative, or their biggest campaign contributor to succeed them. 

Under the second option, if State Governors are authorized to 

designate successors, there is no guarantee they will be of the same 

party or even from the same congressional district. So the Commission was torn between nepotism and political cronyism, neither of 

which undemocratic process is likely to ease the troubled minds of 

constituents in times of crisis. 

In conclusion, Mr. Chairman, I strongly support the statutory approach of expedited special elections to deal with the possible loss 

of large numbers of Members. The framers gave Congress the 

power to regulate such elections by law to preserve our representative system of government and protect our rights. It may take a little more time, but getting it right from the start is more important 

than providing instantaneous continuity from temp Reps who 

would lack both authority from and accountability to the people. 

Thank you. 

[The statement of Mr. Wolfensberger follows:]

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The CHAIRMAN. Thank you. You have been a fascinating panel. 

And in my mind, this is going to be three-fold. And everybody has 

had a lot of good points. Something where you have to have your 

election as quick as you can, but you have to make sure that the 

election is not going to cause arguments for the next 2 years. 

And, you know, with the Help America Vote Act, and there are 

many people in this room, and I see some staff from the Senate, 

Kenny and Paul and everybody that was involved, Steny Hoyer’s 

people, everybody. 

And we sat down with Senator Dodd, and I mean literally 

thought of every single scenario, to the point where you know, you 

think of a scenario and think of one more. We did that on the Help 

America Vote Act, including if the electricity goes out, we have got 

batteries on those computers. So we thought that one out, too. 

We thought about the disenfranchisement issue and provisional—how you lock it in, and where you put the signs up. As you 

know, we just tried to think of every scenario that could go wrong. 

They are elections and they are critical. 

This whole scenario is the same, and more in the sense that you 

have got to involve the election process. Is 45 days too long? Is 21 

too short? And on top of it, I still want to go back to Congressman 

Langevin’s E-Congress, because people have criticized that. I was 

told that what we should have, in case of a catastrophic incident, 

we should have three to four temporary U.S. House sites, three, 

maybe four. 

Now, the problem you have got is if there is massive bombing 

here and there is spot bombing across the United States, you literally can’t get anywhere. You have to have the availability to have 

435 helicopters or 200 helicopters to be going and getting people. 

You would have to have a massive constant standby deployment of 

aircraft. 

And that is why I think under only the rarest of circumstances 

the E-Congress is a great idea, because we don’t have these incidents while we are here. You can be in Europe. Members travel a 

lot during their recess back in their districts. And if something goes 

wrong out here, how do you actually vote to reconstitute the Congress if you can’t be here, or if you have had a gas attack, smallpox, and we have to get out of Washington. How do we go back—

and some people have died. And how do you revote a new Speaker? 

And so I think that is another component that has got to be looked 

at, in my opinion, very, very carefully. 

One problem is, and 9/11 gave you a little feeling of this, but 

there is a point in time, if a lot of people had been killed here, if 

that plane had reached the Capitol and a lot of people were killed, 

I think you would have, and we didn’t have a system in place, I 

think you honestly would start to have the arguments, whether 

justified or not, that we had gotten as close as we could to a few 

people running this country. I mean, a President and a Vice President and a few Members of the House and a few Members of the 

Senate. 

And I think that will cause fear, and almost a paranoia of leaning towards, look, we got close to a dictator of sorts, because the 

perception is out there. And if there were massive bombings and 

martial law had to be declared or something, then it goes another 

129

step. And I think people would feel there is no balance out here. 

At least if you have Members reconstituted in some amount of 

time, the Members are going to complain that somebody has gone 

too far with this or somebody has made a bad decision or a cabinet 

member or the President or another Member made a bad decision. 

So I think that is something we won’t know unless it happens. 

But I think that is also something that has got to be looked at. The 

other question I wanted to ask anybody who would like to answer 

it, is back to the incapacitation. There is a lot of merit to what we 

are discussing today, and to the bills, obviously, that are out there.

But incapacitation is one-issue that has got to be thought very, 

very carefully out on who makes a determination of who is incapacitated and how is that carried out. Also, in my mind, the House 

still has the ability to vacate. It calls for declination. So, therefore, 

there is a mechanism where you could expel a Member, for criminal purposes. So there has been a situation I think where the 

House has been the one to vacate the seat. 

I get a little bit uncomfortable with a State deciding to vacate 

a Federal seat, just as we shouldn’t turn around and say to the 

Secretary of State or Governor, we are going to vacate those seats 

as Washington, D.C. 

But incapacitation, anybody have any other thoughts on it? 

Mr. ORNSTEIN. As I suggested, Mr. Chairman, this is the most 

glaring problem with the simple election process. What I had suggested, and what we have, at least in some of the detail in our 

Commission report as one option here, and this is part of the problem of not only what triggers any of these mechanisms, but who 

makes that decision. 

One of the problems with this bill, as we have discussed, is if you 

have the Speaker as the figure there, or any figure in Washington, 

you might lose that person, you would have no ability to trigger it. 

Incapacitation, by the way, also affects the other side of the Capitol. The Senate has an appointment provision for vacancies. 

I am very uncomfortable with the focus on vacating seats when 

we might have temporary incapacitation, and I certainly do not 

want to take Members who are thrown into intensive care units or 

burn units as a consequence of some terrorist attack and say to 

them, thank you very much, you lose your seat, someone else is 

going to replace you, and you can’t come back. 

So we are going to have a fog of war here if there is an attack. 

You are going to have people missing. 

What I suggested is that the Governors, under conditions of an 

attack, canvass their State delegations and make a determination 

as to whether half or more of the members of the State delegation 

are dead or missing or incapacitated. If so, they sign proclamations 

to that effect. And when you reach a threshold number, maybe it 

is a thrid of the States, maybe it is half of the States having signed 

such proclamations, and you can have them sent to the comptroller 

general and other designees, including some who are outside of 

Washington, then you trigger this mechanism. 

If it turns out that someone is missing for a few days, and you 

have made an appointment, then that person pops up, then all you 

have to do is simply have a provision in place, as we have suggested, that that individual simply sign a statement saying I am 

130

ready to serve again and they are back and they supplant the temporary appointment. 

Let me make just one other note here, Mr. Chairman, about the 

election process that Doug Lewis has made well at other points too. 

Even if you can do this in 3 weeks or 45 days or 60 days, you 

are going to need another period of a week or 10 days to certify, 

to deal with provisional ballots. So under the best of circumstances 

here, we are talking months. And to some degree, the solution suggested by my esteemed colleague, Mr. Wolfensberger, is we have to 

destroy this institution to save it. I am not comfortable with the 

notion that President Lincoln suspended habeas corpus and the 

country survived. I don’t want that happening again. I want to do 

everything that we can to avoid that. And if it is 28 days or 30 

days under these circumstances or 60 or 70 or 80 days, that is too 

long when the American people are going to want a Congress to 

provide a check and balance. 

The CHAIRMAN. One other point also, the big question, and again 

this would be a furor. But if the military is out fighting, as they 

are now as we speak in Iraq and Afghanistan and Bosnia and other 

parts of the world, and there is a catastrophic event here, would 

the military get their votes in to vote for Members of Congress who 

vote whether they go to war or not? So can you do that in X 

amount of days with the military voting? 

That was, as you know, the Help America Vote Act, that was a 

big part of what we looked at, because it was a furor, when people 

felt their vote wasn’t counted and they were over fighting for the 

country. Obviously it made them upset. 

Mr. WOLFENSBERGER. I would like to respond on a couple of 

points. First of all, the House was not destroyed as a result of Lincoln suspending habeas corpus. He also spent money that had not 

yet been appropriated. As soon as the Congress convened in that 

special session, almost 3 months after the fact, the House not only 

retroactively ratified what Lincoln had done, they gave him additional authorities. 

Now, does this mean that the Congress rolled over, was destroyed or whatever? You might recall from your history that the 

Congress also set in motion either a select or a joint committee on 

the conduct of the war that drove Lincoln up the wall. So it was 

not a supine institution by any means. 

The House of Representatives was not destroyed. It came back 

and it came back strong. And also the union survived. It is still 

doing pretty well last I heard. 

The second thing I want to mention is on the expulsion of the 

incapacitated. That is that you should not look at the expulsion as 

only being for punishment of Members, even though they are tied 

closely together in that part of the Constitution. 

My search of the precedents indicates that the two-thirds vote is 

also used to expel a Member who is incapable of performing the duties and responsibilities of office. In other words, it would be very 

appropriate, if Congress makes a determination that that person is 

unable to carry out their duties for the remainder of that term, for 

a Congress to take that vote. But it should be by a two-thirds vote. 

I was very upset by the fact that Gladys Spellman was thrown 

out of office by a majority vote. Why? Because she wasn’t sworn. 

131

She was a Member of Congress under the precedents of the House. 

That should have been a two-thirds vote, in my opinion. 

The CHAIRMAN. The issue of the way to decide to vacate a seat. 

As I understand it, years ago when we didn’t have travel as we do 

today in the United States, States would get notified because of the 

official act of notifying a State about a vacancy. It had to do, if I 

recall right, because you couldn’t get to D.C. that fast. So there was 

this official notification. But I am not sure that just because of notifications of vacancies that we should embark on allowing the 

State to declare the vacancy. Nobody wants to use the word ‘‘expulsion’’ when it comes to incapacitation. But you are right, because 

expulsion is not just for criminals. 

Mr. WOLFENSBERGER. The House precedents made clear that either the executive of the State or the House of Representatives can 

declare the vacancy. I would not extend that to incapacity, as Mr. 

Ornstein’s constitutional amendment would, to allow the Governor 

to declare somebody incapacitated. 

I think that has to be handled much differently, even by a constitutional amendment. But you are right that it can be declared 

by the Governor of the State, or it can be done by the House. In 

the case of a Nick Begich and Hale Boggs whose plane went down 

in Alaska and they never found it, the Governor of the State of 

Louisiana refused to accept the statement of an official in Alaska 

that said that they are presumed dead. So in that case the House 

of Representatives had to vote to declare the vacancy because the 

governor had refused to do so. 

Ms. KIFFMEYER. Thank you very much, Mr. Chairman. I think 

the issue that I find, there are a number of points that have been 

so validly brought up by the members of this panel and the Congressional members before us. And the thoughtfulness ahead of 

time to deal with reasonable scenarios, adjusted to them, knowing 

that no matter what time you choose, no matter what number 

there will be circumstances placed upon you that no one can foresee, and you will be faced with the challenge to rise to the occasion 

and to do the best that you can. 

You will be commended for the foresight, but everybody will understand that you could not have known the exact circumstances. 

It needs to be said that there should be reasonable accommodations 

for every one of these points at which you will draw the line. And 

there will be dissatisfaction to some measure. It will be miserable 

circumstances that would trigger this law. 

Certainly no doubt that was the case in Minnesota. And the first 

response is to deny that it happened. It is the human condition to 

say, I wish it hadn’t happened. I don’t want it to happen. I don’t 

like that this is happening. Yet the process and the continuity was 

of primary importance at that time. We were grateful for the law, 

insufficient in many ways as it was at the time. It was nevertheless a guiding light that was very important and very valuable to 

the continuity, to the issues that were upon us. 

I think that is always an important consideration. I know that 

every one of these matters are very valid, but that at some point 

along the way the decision will have to be made and a process put 

in place which is much greater than any one failure at some point 

along the line that we may question. Thank you. 

132

The CHAIRMAN. You raise—I think the point you are raising is 

the way we have looked at a lot of things. After 9/11, we had an 

amazing amount of decisions to make on what we were going to do 

with the physical structure of this Capitol. And you can look at 

some of the things we did and criticize them. Some of the things 

we do are good. 

Now, does that mean that we are totally safe right now? Absolutely not. If somebody wants to shoot something into the building, 

things can happen. But you make your best effort to make sure 

that—you do the best effort that you know that you can do, and 

we have carried through on that. Every week we reassess, Congressman Larson and our staffs, reassess all types of security 

things. Things we can tell you about and some things we can’t. We 

continue to do that for the physical structure of the Capitol. This 

report came out about 9 months ago, and we need to continue for 

the human structure of this Capitol; that is, the men and women 

that serve here. We need to continue to debate this. I don’t know 

what is right or completely wrong, but I think we need to continue 

on with it. We do it on the physical structure and security. We 

need to do it on how Members are replaced, I believe. 

Mr. LEWIS. And I think one of the assumptions that you have to 

make, and I want to make two points here. One is the first assumption. Don’t always assume that the attack is going to be from 

outside. It could very well be from inside, and if there is a suspension of all of the democratic institutions that works obviously to the 

advantage of the person or persons who are doing the attack from 

the inside. 

Secondly, I think you have got to look at, if you provide for replacements of Congressional folks, it takes a while to learn to be 

a legislator. Administrative people go nuts initially trying to figure 

out how the legislative process works. And it seems to me that you 

need to think through, how do you get experienced legislators up 

here? How do you get people who don’t have to learn their way 

around how a bill gets passed and how the Congress itself gets 

things done? 

Somewhere in here you need to think about how does that succession plan bring people up who can hit the ground running. 

The CHAIRMAN. Where there is a will there is a way. But you just 

raised another thought in my mind. We go through freshman orientation. We bring everyone in. We pick them up, and bring them 

in here, make them sit for 9 days and terrify them with the fact 

that they could go to jail, or owe $50,000 bucks out of their checking account if they make a mistake or if the staff makes a mistake. 

And you bring people out here. And we have talked about the 

Members getting killed. What about the staff? And if you had a 

loss of the institutional staff, I mean Lord forbid this would happen, if you did, you have got these new Members and you would 

have to kind of look at kind of suspending some of the ethics rules 

probably in the House, because they are going to be doing all kinds 

of things not even knowing it. 

I mean there is all of that aspect that I think has to be talked 

about internally too, because you raised a point. 

Mr. LARSON. Thank you, Mr. Chairman. And again, thank all of 

the esteemed panelists, both for your patience and endurance here 

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today. I, in keeping with the spirit of Hollywood that Mr. Dreier 

evoked earlier, I tend to think of Mr. Ornstein and Mr. Mann more 

like Rex Harrison or Russell Crowe, for their thoughtful and professional deliberation on these matters, and appreciate both the 

Continuity of Government Commission’s report and on preserving 

this great institution of ours. 

I have a number of questions. First I wanted to ask, and again 

I want to second the kudos of the chairman to Secretary Kiffmeyer 

for the extraordinary manner in which you handled elections after 

the unfortunate passing of Senator Wellstone. 

But in Minnesota and several other States, and this was noted 

in the testimony of Mr. Ornstein, a voter can register up through 

Election Day and also receive a ballot, which has apparently in 

Minnesota worked well. 

Our colleague, Representative Sabo, is preparing to introduce the 

Same Day Voter Registration Act of 2003. Based on the Minnesota 

experience, would you favor introducing that practice nationwide if 

we had to have emergency special elections? And what do you 

think of the Sabo proposal in general? 

Ms. KIFFMEYER. Well, Mr. Chairman, and Mr. Larson, I think 

under extraordinary circumstances there are a number of things 

that you would probably put in place in order to do an expedited 

election that you would not do routinely. So that may be a circumstance that you would have to take a look at. 

Certainly now with the Help America Vote Act, there are provisional votes that are a type of recognition that if you are not on 

the preregistered list, that you are able to cast a provisional ballot. 

So already through the Help America Vote Act we actually have 

law in place to deal with such a situation that could be used in an 

expedited election. 

Mr. LARSON. Thank you. Again, I want to thank especially Mr. 

Lewis as well for raising several scenarios in your deliberations. 

And Mr. Wolfensberger, I guess, is there any circumstance or any 

calamity in which you would consider a constitutional amendment 

that would reconstitute the House of Representatives? And the reason I say that, because I am struck by the fact that at some point, 

if we go back to the beginning, the Continental Congress, that at 

some point legislators have to be appointed to constitute the formation of government. 

And I understand people, and I think even on the Commission, 

and again I think it is an outstanding report, went to great lengths 

to grapple with this issue of not wanting to just willy-nilly go forward with a constitutional amendment. But given the enormity 

and the potential for a catastrophic event, the President giving his 

State of the Union message, dirty bomb explodes, taking or incapacitating the vast majority of Members of Congress, the President, 

judicial branches, where the issue was raised as well. 

That is an extraordinary event that again, doesn’t—it takes place 

today in real terms, not in the Second World War or the Civil War 

as examples were given before, good examples, and no quibble with 

those examples. But it seems to me that we must grapple with this 

situation. We can’t be in denial that this could absolutely transpire. 

And what would be wrong with going forward on two tracks as we 

look forward to addressing this issue and having—because there is 

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no guarantee that a constitutional amendment would be ratified by 

the States, but having in true democratic fashion not only this Congress, but the Nation grapple with this issue? 

Mr. WOLFENSBERGER. I think that is an excellent question. I 

think the thing that was brought up in today’s testimony that is 

the most nettlesome, and the best argument for a constitutional 

amendment, is that a large number of Members would be incapacitated and you might be in deadlock for a prolonged period of time 

before some kind of determination is made that you have to expel 

them because they are not gong to recover. 

So it seems to me if you had a situation, for instance, where 100 

Members were killed but you had 300 Members incapacitated, and 

you could not get yourself a quorum, even if those 100 Members 

were replaced by special elections, how do you get a quorum? And 

it seems to me that maybe that is the one instance in which you 

would have to have temporary replacements by a constitutional 

amendment. 

So I can understand that situation, putting you in a deadlock 

where you really can’t act. You would not have 218 sitting Members, even after a special election, unless the Members that were 

sitting decided to expel all of those that were incapacitated. They 

might recover within a few weeks time or a few months, time. 

So I would concede that that would be one very dire situation 

where Congress could be deadlocked for months with a vast majority of Members just incapacitated. 

Mr. MANN. Mr. Larson, I am encouraged by my friend Don 

Wolfensberger’s statement here that he could imagine a circumstance; namely, mass incapacitation, in which emergency temporary replacements would be needed, and of sufficient importance 

that the principle of elected House Members could be amended in 

that slight way. 

What I want to suggest to you is that this principle has taken 

on a life that goes well beyond any basis in reality. It has something to do with the institutional competitiveness between the 

House and the Senate. This is a very awkward thing for me to discuss. But you know, we talk about the other body and in the House 

we grouse about the other body and its institutional frailties and 

liabilities, and the other body occasionally makes similar comments 

about this body. 

Some competitiveness is a good thing. 

The CHAIRMAN. I hate to interrupt you. But when you are in retirement in your job, you make comments about the other body. 

You have nothing to do. They do that. 

Mr. MANN. I am afraid in this context it has moved to the point 

of hubris. What I want to say is the special character of this institution, the House of Representatives, does not reside in the fact 

that there is no provision for temporary emergency appointments. 

It has to do with its size, with the length of term, with the smaller 

constituencies than the other body, with the particular constitutional powers that it was given. 

Would anyone claim that the Senate of the United States lacks 

legitimacy because of the provision within the 17th amendment allowing for temporary special appointments? Listen, the 17th 

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rect election to both bodies, both Houses of the Congress have direct election. 

The Senate is different from the House for reasons other than 

elections, the direct election. In fact, I would argue that the electoral process of the Senate and the House have become more similar over time. Fund-raising has become more similar. And, therefore, it is more hubris than anything else to place so much attention on this notion that every Member of the House has been first 

elected. 

If my friends and colleagues who make this argument would 

show equal interest in trying to lend more substance to the elections to the House, by dealing with the problems of 

uncompetitiveness, the fact that 90 percent aren’t competitive, the 

problems of redistricting, the problems that contribute to this lack 

of competition, then I would feel a little more sympathy. 

The second point is elections are not the only feature of the 

United States Constitution. Brian Baird sort of said this, others 

have said it as well. We have more than just a small ‘‘d’’ democracy, we have a small ‘‘r’’ republic, and we have a constitutional 

system which includes separation of powers. We mange to balance 

interests, and it seems to me in that spirit it is very dangerous to 

elevate this small provision having to do with temporary emergency appointments above everything else that provides the real 

basis of our durability as a constitutional democracy.

Thank you. 

Mr. LARSON. I just wanted to comment on that, because you raise 

a very good point. It was going to be one of my follow-up questions, 

is that I feel that the House is at a constitutional disadvantage because of the powers granted in the Constitution for the Senate to 

be able to reconstitute almost immediately. 

While under the best circumstance, it would be, well, let’s say 

even if we took 21 days in the process, that is highly unlikely, and 

more likely probably about 60 days as people have indicated, and 

even then for some States that may not be a reality. But the idea 

that the Senate can be reconstituted immediately, and given the 

emergency nature of which we would be operating under, I think 

would be governing and leaping almost in Haigian fashion, saying 

we are in charge here at this point, given the nature of what has 

happened and what has transpired. And whether it be hubris or 

human nature or the state of the emergency, for us not to have 

looked at the Constitution and recognized that by its very nature 

there is an imbalance that has been created here in terms of dealing with this emergency, then I think that would be wrongheaded 

on the part of the Congress. 

Mr. Ornstein. 

Mr. ORNSTEIN. Thanks, Mr. Larson. Just a couple of points. One, 

I want to throw out a couple of figures for you, following up on 

what Tom said. 

If you look at Senate appointments with individuals who then 

run for election in their own right, their success rate is 50 percent. 

If you look at House elections, reelection rates are about 98 to 99 

percent. One of the worst case scenarios here for me is that we 

have elections in 21 days. You have party bosses slap together candidates, probably it is going to be the rich and the famous. They 

136

come in under the aegis of an election mandate and then they may 

be there for decades thereafter. We will have set the House for a 

very long period of time under the worst, most stressful, most distorted set of conditions. It is another reason to make sure that we 

have adequate time here for very full elections. 

In our Continuity of Government Commission we had some very 

spirited debates about those who might come in under emergency 

interim appointments and could then run for election, and we came 

to the conclusion that we should leave that. We don’t want to bar 

people under those conditions from running. 

But we were very much cognizant of the fact that coming in as 

an appointment, what history suggests is that is not a blank check 

that you are going to be there forever, that people under those conditions, voters under those conditions look, the next time around, 

when you will have a substantial period of time for an election, to 

make those judgments. 

One other point, as we look at our worst case scenarios and we 

think about a House that might consist of just a handful of Members, remember that under the presidential succession process 

three Members of the House could constitute a quorum, choose a 

Speaker who might then become the President, the acting President for a period of time, and the worst case scenario that we have 

come up with is something happening at an inaugural. 

What the Congress has to do, and what you also have to think 

about, is the succession process for all three branches. We need to 

take another look at presidential succession. Now, it has been done 

very responsibly in the past by the Congress. I think it is outmoded 

at this point. But the reason that we drew our constitutional 

amendment the way we did was very much to parallel the way that 

the Constitution itself deals with presidential succession. It delegates to Congress that authority by law, not a supermajority, after 

a President. 

Congress hasn’t manipulated that process for partisan or other 

crass political purposes. They have dealt with it very seriously. I 

have little doubt that if you passed an amendment that gave the 

Congress the authority to set rules in place for emergency interim 

appointments that it would be dealt with in a responsible and not 

a political fashion.

What pains me the most is that all of these issues, how you set 

the threshold, what that threshold ought to be, whether as Mr. 

Ehlers suggested 100 members is really necessary, or whether it 

ought to be 300 or 400 for a quorum, whether we are dealing with 

the kind of worst case scenario that Don Wolfensberger just talked 

about where he indicated a willingness at least to consider an 

amendment where you have got widespread incapacitation but not 

to a point where you would expel Members, but you would be gridlocked for months without a quorum, any of those circumstances, 

we ought to have been debating this over the last 2 years to try 

and come to some balanced judgment. It is only now that we are 

going to do it. 

We have had lengthy periods without a Vice President. We had 

Presidents comatose for months, with Woodrow Wilson. We didn’t 

act until it was forced upon us. We ought to be able to do better 

now. 

137

Mr. LARSON. Along those same lines, Chairman Dreier in his discussion alluded to the fact that there—he was talking about a 

virus, and in this case a virus that eats the Constitution. Of course 

he was referring to the fact that all of these potentially bad things 

could happen when you propose amending the Constitution. And 

yet as we look back at our history, that is not the case. They have 

been very thoughtful. 

I am not concerned, especially given the events since September 

the 11th, and the response of the American people, who seem to 

have a more renewed and deliberative interest about the instrument of government, that this wouldn’t be a wonderful exercise for 

this country to reacquaint itself with its civic responsibility. 

And I further believe that, you know, some valid points have 

been made in terms of time, and the very nature of the House of 

Representatives and the concept that they are elected directly by 

the people. What a great opportunity to bring this forward to classrooms and back to our town halls and our communities where people once again take a renewed interest in what did, in fact, our 

forefathers intend. 

And what is this process of amending the Constitution? And can 

this circumstance simply be dealt with legislatively? Should there 

be a list of people? Should we go back to the State legislators or 

the Governor for an appointment process? What kind of constraints 

should we have? Why shouldn’t the American people participate in 

this thing, and have the media, instead of flooded with the—well, 

kinds of programming that often emanate in the evening? Why not 

focus on this kind of amendment process concurrent with an instant remedy that Mr. Sensenbrenner has proposed as well? 

In the event, God forbid, anything were to happen between the 

process of ratification or not, or in the event that an amendment 

was not ratified then, I guess half a loaf is better than no loaf at 

all. But I am very deeply concerned by the questions that you have 

raised, and I thank Mr. Lewis again. 

I believe that if Secretary Kiffmeyer could do it in 31 days, and 

given the crisis and even given Mr. Sensenbrenner’s concept that 

America will pull together, you know that America would pull together in that kind of a fashion. But should they under those circumstances, and are there unanticipated calamities, as the Secretary pointed out, that we haven’t even yet considered? And why 

not have a bird in the hand in terms of an emergency provision 

that would allow us to have the kind of transition that would preserve the very sacred idea that is embodied in the Dreier and Sensenbrenner and Miller proposal? 

Mr. WOLFENSBERGER. Mr. Chairman, Mr. Larson, that is an excellent statement. I think, you know, you have obviously thought 

this over a great deal. I just wanted to get back to one thing 

though. I have to take issue with my good friend Tom Mann using 

the word ‘‘hubris’’ as applying to those who think the House is 

unique and it should retain its elected character no matter what. 

I don’t think that is hubris at all, because to me hubris means 

an attitude of infallibility, invulnerability, being above the law, 

being above the people. The attitude of the people that you have 

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stitutional amendment is that they are of the people, not above the 

people. That is not hubris. They want to keep it that way.

The House is different from the Senate. I don’t care how much 

they are getting more alike in the way they campaign or some of 

the rhetoric they use on the floor at both bodies. The Senate is full 

of a lot of former House Members that carry some habits with 

them. But the fact remains that they are two different institutions. 

And when you consider the fact that the history of this constitutional amendment we are talking about today, it has passed the 

Senate three times but never the House. Why? 

Because the Senate has the attitude that you have for My Fair 

Lady, why can’t a woman be more like a man? The Senate says, 

why can’t the House be more like the Senate? Well, it is not. And 

that is the reason that you have had the resistance in the House 

and the reason the Senate has been so happy to let the House be 

like the Senate and allow the Governor to appoint. 

But I would remind you that we got the 17th amendment because we had legislatures appointing Senators in the old days and 

things got so scandalous by that process that they had to go with 

direct elections. That is how we got the 17th amendment. My State 

of Illinois was the worst, from what I have read. 

So you have to think these things over as to why we have these 

differences, where we are both coming from. Yes, we are unique. 

It is not hubris that the House thinks it is of the people and maybe 

it should stay that way even in the short term in a catastrophic 

situation. 

So I will leave it at that. 

Mr. MANN. I am sorry, but the Senate is of the people too. They 

have direct elections and had even well before in most States the 

17th amendment was passed. That ratified a practice that was well 

underway. The differences between the bodies are important but 

they do not rest on whether the legitimacy of the body flows from 

the people. Both bodies are elected by the people and are representative of different terms, different constituencies, different sizes, different constitutional provisions. 

What we are talking about is temporary appointments. That is 

a very, very small part of the picture. And for anyone to place the 

special character of the House on that provision I think is to do 

great distortion to the constitutional system as it exists today. 

Mr. LARSON. What would you think about a provision that would, 

and I think Mr. Ornstein alluded to this, that the Commission considered this. But Governor O’Neill from Connecticut, a very wise 

man, had to deal with constitutional appointments when he was 

Governor and had appointive capacity. And one of his rule of 

thumbs was that you could never succeed yourself in that position. 

You could serve out the term. And there was nothing constitutionally that would have prevented a person from succeeding himself. But that was the understanding and the proviso, because, he 

would argue, that you were not elected by the people and you 

shouldn’t be using this office to initiate your campaign to succeed 

yourself. 

How would you respond to that wisdom of Governor O’Neill? 

Mr. MANN.. I think there is something to be said for that. It is 

true in our Commission we had a lively debate on that. One of the 

139

problems was that it seemed like a restriction on free speech, free 

expression to deny someone the ability to run for office. But if it 

was deemed to be consistent with the Bill of Rights, since we are 

talking about emergency temporary appointments in the face of a 

national catastrophe, I think it would be highly desirable for these 

to be seen as interim temporary appointments drawing on people, 

as others have said, hopefully with legislative experience and some 

standing who could fill this need on a short-term basis. 

Mr. ORNSTEIN. You know, our position, and I think I can associate Brian Baird with this as well, is for most of these things we 

are almost agnostic. Whether it is State legislators with a time 

limit so you wouldn’t end up with the gridlock and then Governors 

taking over to make these decisions, whether it is a list of people, 

any limits that you place on those making the appointments and 

preventing them from running again, those are fine. I would be 

perfectly happy to enthusiastically endorse any or all of those.

The most significant thing is that we grapple with these issues 

and that we begin to move on them. The one thing I believe we all 

agree with is this should not be for the House of Representatives 

a routine matter. We don’t want appointments. We don’t want the 

House to be exactly like the Senate. 

We want this to be only in the event of the most dire catastrophe, and if you want to set the threshold at 218, or if you want 

to set it with some combination of Members dead or incapacitated, 

if you wanted to set it at 300 even, something that is high enough 

that you are only going to trigger it under the worst of circumstances where the alternative is no House at all for a substantial period of time, please go ahead and do so. Just do it. 

Just one other very brief note, because Mr. Ney had mentioned 

military voters and we didn’t get back to that, and Representative 

Miller mentions it in her testimony as well. We did have a very 

small number who voted using the Internet the last time. We have 

a pilot project going forward in this election that will encompass 

a lot more people. 

But using the analogy of the worm that Mr. Dreier suggested, 

given the worms we have had in the Internet, knowing the fire 

walls under the best of circumstances don’t work, knowing we have 

had all kinds of conferences and experts look at Internet voting 

more generally, this is a disaster in the making more generally. 

It is not going to work particularly. It would be easy to have that 

thwarted under the circumstances. To have an expedited election 

in a 3-week period fundamentally means that you are going to deny 

lots of absentee voters the right to vote, and you are going to deny 

the military the right to vote. 

And under these circumstances where you may be picking Representatives for a long period of time, that is a consequence that 

we ought to think through very seriously if we want to move to 3 

weeks, 6 weeks, 8 weeks or 12 weeks. 

Mr. LARSON. Madame Secretary, I saw you wanted to speak. 

Ms. KIFFMEYER. Yes, Mr. Chairman. I thought Dr. Ornstein, I 

thought you did a wonderful job laying it out just simply. Take this 

larger matter at hand on a principal base away and move forward, 

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thing happening of catastrophic importance and then we have 

nothing at all to go on, which would be very, very harmful. 

And I am reminded of a platform rules committee that I was 

dealing with, made up of 10 attorneys.

After several meetings of taking notes for them we had several 

pages of rules to govern our convention. The morning of the convention we were to finish doing those rules. However, we ran out 

before the convention started. The convention started without those 

rules, and it was not a pleasant situation. 

So it illustrates the point that even in any situation you may not 

have perfection but do not let that keep in the way of doing the 

best, and do not let the analysis paralysis take hold and thereby 

miss the greater good by simply taking action. 

The CHAIRMAN. I will make a comment on Dr. Ornstein’s comment. 

You know, what we might have to do is say, look, we can’t do 

these in 10 days, we can’t do them in 21 days, or, if you do, here 

is where you disenfranchise. Then you lay out on the table and you 

admit it, doing the best you can do. But those are decisions that 

do have to be thought out. 

Everybody here has raised a lot of good points. I have one question about the constitutional amendment. Any best guesses of what 

time frame the States would ratify it? I mean, we are talking about 

right now if an emergency at—the Capitol is under some catastrophic attack, could this be how many years down the road? 

Mr. LEWIS. I am going to be one—I would say to you, I am Pollyanna in all of this because I believe in the process and I think it 

will all work, so I am probably someone who is going to give you 

the dreamer’s attitude. But I honestly think if you come up with 

a constitutional amendment that is halfway reasonable you are 

going to see the States act fairly quickly this time on it because 

they understand the nature of what we are facing that we have 

never faced before. 

The CHAIRMAN. I wanted to make one comment also. We joke 

about the Senate and the Senate about the House, but in all reality 

it is the United States’ Senate. If something happened over there, 

their difference—we are elected. But their difference, as we know, 

they can be reconstituted within days. In the event something does 

happen, at least you do—in the knowledge in your mind, you do 

have a fully constituted Senate. That doesn’t mean you shouldn’t 

have a House, but at least you do have a body. It is not like both 

bodies have to be elected and all of a sudden you don’t have a Senate or a House. So that is at least a stability point with the Senate’s appointment process. 

Mr. ORNSTEIN. With one exception, and it is a real-world exception that we saw with the anthrax. If that anthrax attack had been 

in fact a serious terrorist effort to disable the Senate and had gotten into the ventilation system through the offices, we might very 

well have had 50 or 60 senators in intensive care units with inhalation anthrax for months—no quorum, no Senate. So I believe the 

Senate also has a responsibility now. There are too many realworld circumstances where you would have neither a House nor a 

Senate because of widespread incapacitation. The Senate has a 

141

hole in its process that has to be dealt with just as much as the 

House. 

The CHAIRMAN. On those terms I was thinking of death. But, 

again, it comes back to the incapacitation. I think it is a real 

touchy subject to who deems that that Senator is incapacitated and 

who deems it in the hospital. Does the doctor or the governor? That 

is a road that needs a good amount of discussion. 

Mr. LEWIS. What I would hope as a result of what you all have 

done today and what Senator Cornyn did a couple of weeks ago in 

the Senate is that I would hope that the concept that you folks 

need to move forward settles in. Obviously, somebody in here has 

to take lead, because when—all too often what happens in what I 

have observed and what happens on Capitol Hill is that people go 

into brain lock when they offer a bill. They just absolutely cannot 

see any other way to do things other than what they have proposed. Hopefully, your committee can guide through this process to 

help all the Members see that there is a greater good here and a 

greater objective here. But with all due respect, I think Senator 

Kiffmeyer—Secretary Kiffmeyer absolutely right. The urgency is 

now.

Mr. WOLFENSBERGER. Just one point on the length of time it 

would take to ratify the constitutional amendment. I think it depends on the nature of the constitutional amendment. If you come 

up with one that the Commission has recommended that says, well, 

the Congress will fill in the blanks later with the statutory language, I think it would take the States some time to come around 

to that. They may not support it because they see that Congress 

can do most anything then by law. So a lot of it depends on the 

nature of the constitutional amendment. If it is one that is fairly 

clear, such as mirroring what the Senate now does, that may well 

go pretty fast. I just don’t know. 

But getting back to the O’Neil principle that Congressman 

Larson raised on whether a Member that is appointed should be 

able to succeed himself, I am strongly ambivalent on that. On the 

one hand, I agree with the others that under the Constitution anybody that is eligible should be able to run for office. On the other 

hand, you have these people who have just been appointed and you 

say the urgency is for them to be there and do the emergency legislating that needs to be done, but at the same time you are making 

it possible for them to be running for office. And you know darn 

well with an expedited election they are going to be back home running for office more than they are going to be here learning the 

ropes and doing the legislating. 

Mr. LARSON. That is why Governor O’Neil was a wise governor. 

The CHAIRMAN. I want to thank a tremendous panel, and I want 

to thank all the witnesses who have worked so hard to prepare for 

this. I want to thank Congressman Larson and his staff and our 

staff for all of their time and effort into this. 

I ask unanimous consent that a written statement prepared by 

Senator John Cornyn of Texas on the subject of H.R. 2844 be entered into the record. 

Without objection, his statement will be entered. 

[The statement of Senator Cornyn follows:]

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The CHAIRMAN. I ask unanimous consent that members and witnesses have 7 legislative days to submit material in the record and 

for their statements and materials to be entered into the appropriate place in the record. 

Without objection, the material will be so entered. 

I ask unanimous consent that the staff be authorized to make 

technical and conforming changes on all matters considered by the 

committee at today’s hearing. 

Without objection, so ordered. 

That completes our business for today. Thank you. 

Mr. LARSON. Mr. Chairman, I just wanted to thank you for bringing this forward in a timely fashion as you always do. 

[Whereupon, at 5:25 p.m., the committee was adjourned.]

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