```

[House Report 108-404]
[From the U.S. Government Publishing Office]

108th Congress                                            Rept. 108-404
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 2

======================================================================

 
                CONTINUITY IN REPRESENTATION ACT OF 2004

                                _______
                                

January 28, 2004.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                    DISSENTING AND ADDITIONAL VIEWS

                        [To accompany H.R. 2844]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2844) to require States to hold special elections to 
fill vacancies in the House of Representatives not later than 
21 days after the vacancy is announced by the Speaker of the 
House of Representatives in extraordinary circumstances, and 
for other purposes, having considered the same, reports 
favorably thereon with amendments and recommends that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     3
Hearings.........................................................    10
Committee Consideration..........................................    10
Vote of the Committee............................................    10
Committee Oversight Findings.....................................    11
New Budget Authority and Tax Expenditures........................    11
Congressional Budget Office Cost Estimate........................    11
Performance Goals and Objectives.................................    16
Constitutional Authority Statement...............................    16
Section-by-Section Analysis and Discussion.......................    16
Changes in Existing Law Made by the Bill, as Reported............    16
Markup Transcript................................................    18
Dissenting Views.................................................    47
Additional Views.................................................    51

    The amendments are as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Continuity in Representation Act of 
2004''.

SEC. 2. REQUIRING SPECIAL ELECTIONS TO BE HELD TO FILL VACANCIES IN 
                    HOUSE IN EXTRAORDINARY CIRCUMSTANCES.

    Section 26 of the Revised Statutes of the United States (2 U.S.C. 
8) is amended--
            (1) by striking ``The time'' and inserting ``(a) In 
        General.--Except as provided in subsection (b), the time''; and
            (2) by adding at the end the following new subsection:
    ``(b) Special Rules in Extraordinary Circumstances.--
            ``(1) In general.--In extraordinary circumstances, the 
        executive authority of any State in which a vacancy exists in 
        its representation in the House of Representatives shall issue 
        a writ of election to fill such vacancy by special election.
            ``(2) Timing of special election.--A special election held 
        under this subsection to fill a vacancy shall take place not 
        later than 45 days after the Speaker of the House of 
        Representatives announces that the vacancy exists, unless a 
        regularly scheduled general election for the office involved is 
        to be held at any time during the 75-day period which begins on 
        the date of the announcement of the vacancy.
            ``(3) Nominations by parties.--If a special election is to 
        be held under this subsection, not later than 10 days after the 
        Speaker announces that the vacancy exists, the political 
        parties of the State that are authorized to nominate candidates 
        by State law may each nominate one candidate to run in the 
        election.
            ``(4) Extraordinary circumstances.--
                    ``(A) In general.--In this subsection, 
                `extraordinary circumstances' occur when the Speaker of 
                the House of Representatives announces that vacancies 
                in the representation from the States in the House 
                exceed 100.
                    ``(B) Judicial review.--If any action is brought 
                for declaratory or injunctive relief to challenge an 
                announcement made under subparagraph (A), the following 
                rules shall apply:
                            ``(i) Not later than 2 days after the 
                        announcement, the action shall be filed in the 
                        United States District Court having 
                        jurisdiction in the district of the Member of 
                        the House of Representatives whose seat has 
                        been announced to be vacant and shall be heard 
                        by a 3-judge court convened pursuant to section 
                        2284 of title 28, United States Code.
                            ``(ii) A copy of the complaint shall be 
                        delivered promptly to the Clerk of the House of 
                        Representatives.
                            ``(iii) A final decision in the action 
                        shall be made within 3 days of the filing of 
                        such action and shall not be reviewable.
                            ``(iv) The executive authority of the State 
                        that contains the district of the Member of the 
                        House of Representatives whose seat has been 
                        announced to be vacant shall have the right to 
                        intervene either in support of or opposition to 
                        the position of a party to the case regarding 
                        the announcement of such vacancy.''.

    Amend the title so as to read:

      A bill to require States to hold special elections to 
fill vacancies in the House of Representatives not later than 
45 days after the vacancy is announced by the Speaker of the 
House of Representatives in extraordinary circumstances, and 
for other purposes.

                          Purpose and Summary

    The ``Continuity in Representation Act of 2003'' provides 
for the expedited special election of new Members to fill seats 
left vacant in ``extraordinary circumstances.'' ``Extraordinary 
circumstances'' occur when the Speaker of the House announces 
that vacancies in the representation from the States in the 
House exceed 100. Under the bill as reported by the Committee 
on House Administration and the Committee on the Judiciary, 
when such ``extraordinary circumstances'' occur, a special 
election must be called within 45 days, unless a regularly 
scheduled general election for the office involved is to be 
held within 75 days. Within 10 days of such an announcement by 
the Speaker, the political parties of the State that are 
authorized to nominate candidates by State law may each 
nominate one candidate to run in the election.

                Background and Need for the Legislation

    H.R. 2844, the ``Continuity in Representation Act of 
2003,'' was introduced on July 24, 2003, by House Judiciary 
Committee Chairman F. James Sensenbrenner, Jr., House Rules 
Committee Chairman David Dreier, Representatives Candice Miller 
and Tom Cole (both former chief State election officials), 
House Constitution Subcommittee Chairman Steve Chabot, and 
Representative Ron Paul. House Judiciary Committee Ranking 
Member John Conyers, Jr. and Representative Howard Berman are 
co-sponsors of H.R. 2844. It also has the support of Speaker 
Hastert.

                        A. CONSTITUTIONAL ISSUES

    The Continuity in Representation Act will protect the 
people's right to chosen representation. The uninterrupted 
tradition is that only Representatives duly elected by their 
local constituents should serve in the House. Indeed, while 
some argue that adopting an amendment to the Constitution that 
allows for the appointment of replacement Members will deter a 
terrorist attack designed to disrupt the functioning of 
Congress, the very adoption of such an amendment itself would 
strike a fatal blow to what has otherwise always been ``The 
People's House.''
    The House is rooted in democratic principles, and those 
principles must be preserved. James Madison used the strongest 
of terms when stating the House must be composed only of those 
elected by the people. Madison wrote in Federalist Paper No. 52 
that ``As it is essential to liberty that the government in 
general should have a common interest with the people, so it is 
particularly essential that the [House] should have an 
immediate dependence on, and an intimate sympathy with, the 
people. Frequent elections are unquestionably the only policy 
by which this dependence and sympathy can be effectually 
secured.'' \1\ Madison continued: ``Who are to be the electors 
of the Federal representatives? Not the rich, more than the 
poor; not the learned, more than the ignorant; not the haughty 
heirs of distinguished names, more than the humble sons of 
obscurity and unpropitious fortune. The electors are to be the 
great body of the people of the United States.'' \2\
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    \1\ Federalist No. 52 (Madison), at 327 (Clinton Rossiter ed., 
1961) (emphasis added).
    \2\ Federalist No. 57 (Madison), at 351. See also Federalist No. 39 
(Madison), at 242, 244 (``The House of Representatives . . . is elected 
immediately by the great body of the people . . . The House of 
Representatives will derive its powers from the people of America.''); 
Federalist No. 57 (Madison), at 351 (``The elective mode of obtaining 
rulers is the characteristic policy of republican government.''). 
Madison also refers to the ``requisite dependence of the House of 
Representatives on their constituents.'' Federalist No. 52 (Madison), 
at 328. In Jackson v. Ogilvie, the Seventh Circuit held that `the 
people's right to chosen representation is not limited to exercise at a 
biennial election, but is a continuing right which is not to be 
defeated by death of a Representative once chosen, or other cause of 
vacancy.'' 426 F.2d 1333, 1336 n.7a (7th Cir. 1970) (emphasis added) 
(quoting M. St. Clair Clarke and David A. Hall, Cases of Contested 
Elections (Washington, D.C. 1834), the Case of John Hoge of 
Pennsylvania, at 139).
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    Madison explicitly rejected the proposition that the 
appointment of Members authorized by Congressional legislation 
is compatible with the American Republic. In Federalist No. 52, 
Madison stated ``The definition of the right of suffrage is 
very justly regarded as a fundamental article of republican 
government. It was incumbent on the [Constitutional] 
convention, therefore, to define and establish this right in 
the Constitution. To have left it open for the occasional 
regulation of the Congress, would have been improper for the 
reason just mentioned.'' \3\ Further, in his ``Speech in the 
Federal Convention on Suffrage,'' Madison stated, ``The right 
of suffrage is certainly one of the fundamental articles of 
republican Government, and ought not to be regulated by the 
Legislature. A gradual abridgement of this right has been the 
mode in which Aristocracies have been built on the ruins of 
popular forms.'' \4\ The very alternative offered by some 
opponents of H.R. 2844--a constitutional amendment to allow 
Congress to require that vacant House seats be filled by 
appointment--was explicitly rejected by the Founders as 
antithetical to republican government.
---------------------------------------------------------------------------
    \3\ Federalist No. 52 (Madison) at 326 (Clinton Rossiter ed., 1961) 
(emphasis added).
    \4\ James Madison, ``Speech in the Federal Convention on 
Suffrage,'' (August 7, 1787) reprinted in James Madison: Writings (Jack 
N. Rakove, ed. 1999) at 132.
---------------------------------------------------------------------------
    Further, during the height of the Cold War, when the nation 
feared a potential nuclear or biological attack by the Soviet 
Union on the entire land mass of the United States, the Senate 
three times passed constitutional amendments similar to those 
some are proposing currently, and the House chose not to act on 
any of them.\5\ Demonstrating that this is not a partisan 
issue, but one concerning the legitimacy of all Members of the 
House and of the legislation it passes, the House of 
Representatives rejected such Senate-passed amendments both 
when it was controlled by Republicans in the 83rd Congress (221 
Republicans, 213 Democrats), and when it was controlled by 
Democrats in the 84th Congress (232 Democrats, 203 Republicans) 
and in the 87th Congress (262 Democrats, 175 Republicans).
---------------------------------------------------------------------------
    \5\ See Sula P. Richardson, ``House Vacancies: Proposed 
Constitutional Amendments for Filling Them Due to National Emergency'' 
CRS Report for Congress (RL-32031) at 5.
---------------------------------------------------------------------------
    H.R. 2844 would provide for, among other things, expedited 
special elections in the States to fill vacant House seats in 
extraordinary emergency situations. Congress has the clear 
constitutional authority to enact such legislation under 
article I, section 4, clause 1 of the Constitution, which 
states that ``The Times, Places and Manner of holding Elections 
for Senators and Representatives, shall be prescribed in each 
State by the Legislature thereof; but the Congress may at any 
time by Law make or alter such Regulations . . .'' \6\ In 
enacting such legislation, Congress would uphold the Founders' 
understanding of what is essential to democracy, maintain the 
uninterrupted tradition that only duly elected Members serve in 
the House of Representatives, and preserve the American 
people's right to their chosen Representatives. Consistent with 
the right to chosen representation, the Founders explicitly 
considered Congress's power to require expedited special 
elections as the solution to potential discontinuity in 
government in emergency situations. As Alexander Hamilton wrote 
in Federalist Paper No. 59, in discussing article I, section 4, 
clause 1, ``[The Constitutional Convention has] reserved to the 
national authority a right to interpose, whenever extraordinary 
circumstances might render that interposition necessary to its 
safety. Nothing can be more evident, than that an exclusive 
power of regulating elections for the national government, in 
the hands of the State legislatures, would leave the existence 
of the Union entirely at their mercy. They could at any moment 
annihilate it, by neglecting to provide for the choice of 
persons to administer its affairs.'' \7\
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    \6\ In Smiley v. Holm, 285 U.S. 355 (1932), the Supreme Court held 
that ``[i]n exercising this power, the Congress may supplement . . . 
state regulations or may substitute its own . . . It has a general 
supervisory power over the whole subject.'' Id. at 366-67 (quotations 
and citations omitted). The Supreme Court described ``the whole 
subject'' over which Congress has general supervisory power as follows: 
``The subject-matter is the `times, places and manner of holding 
elections for senators and representatives.' It cannot be doubted that 
these comprehensive words embrace authority to provide a complete code 
for congressional elections, not only as to times and places, but in 
relation to notices, registration, supervision of voting, protection of 
voters, prevention of fraud and corrupt practices, counting of votes, 
duties of inspectors and canvassers, and making and publication of 
election returns.'' Id. at 366. Also, the House alone has the authority 
to judge the elections of its own Members. Article I, section 5, clause 
1 of the Constitution provides that ``Each House shall be the Judge of 
the Elections, Returns and Qualifications of its own Members . . .''.
    \7\ Federalist No. 59 (Hamilton) at 363 (Clinton Rossiter ed., 
1961) (emphasis added). Hamilton continued: ``The natural order of the 
subject leads us to consider, in this place, that provision of the 
Constitution which authorizes the national legislature to regulate, in 
the last resort, the election of its own members . . . I am greatly 
mistaken, notwithstanding, if there be any article in the whole plan 
more completely defensible than this. Its propriety rests upon the 
evidence of this plain proposition, that every government ought to 
contain in itself the means of its own preservation . . . It will not 
be alleged, that an election law could have been framed and inserted in 
the Constitution, which would have been always applicable to every 
probable change in the situation of the country; and it will therefore 
not be denied, that a discretionary power over elections ought to exist 
somewhere . . .'' Id. at 361-362 (emphasis in original).
---------------------------------------------------------------------------
    While some imagine horrific scenarios regarding 
catastrophic attacks on the Nation's capital, more inspiring 
scenarios can be imagined that resonate more closely with the 
American spirit. Following such an attack, millions of people 
around the country might fill schools, gymnasiums, churches, 
and meeting halls, and freely exercise, in the wake of terrible 
actions by vicious haters of democracy, their right to chosen 
representation--a right that has survived uninterrupted 
throughout the history of the United States. When terrorists 
attacked on September 11, 2001, it was an elected--not an 
appointed--Congress that acted in its wake, and the legislation 
passed by that elected Congress has a legitimacy that 
legislation passed by an appointed Congress would not have had. 
While some argue that Congress must immediately reconstitute 
itself in order to check a President imposing martial law, the 
President's potential abuse of power is already subject to 
check by the impeachment process, which, as any President will 
know, could be initiated by both a depleted or a later 
repopulated House of Representatives.
    Another proposed solution is a constitutional amendment 
that grants Congress blanket authority to legislate how Members 
would come to serve in this body. That provides no solution, 
but only potential mischief and the prospect of political 
gamesmanship by future Congresses. Further, if the statute 
enacted by Congress under such an amendment allows appointed 
Members to run in the special elections following their 
appointment, they would be distracted by campaign politics at 
the very moment they are expected to be focusing on legislative 
duties. If, on the other hand, such legislation provided that 
appointed Members could not run in such special elections, they 
would have no institutional connection to the electorate's 
desires. Either way, legislation passed by an appointed House 
that did not comport with the people's will would have to be 
repealed by a later elected House, leading to further 
discontinuity at the very time continuity is most important. A 
time following a catastrophic attack in this country would be 
one of the most significant times in our history, and that is 
precisely not the time, if ever there is one, for the laws to 
be written by appointed Members who have no authority from, nor 
responsibility to, the people.
    H.R. 2844 is founded on clear, existing constitutional 
authority, and it preserves the vital, time-tested 
constitutional value of elected representation that has made 
this country the most successful experiment in self-governance 
the world has ever known.

                           B. ELECTION ISSUES

    While some claim it would be too burdensome for special 
elections to be required within 45 days of a catastrophic 
attack, 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 must be held no more than 28 days after the 
governor issues the writ of election, and the governor must 
issue the writ of election no more than 5 days after the 
vacancy occurs if Congress is in session, thereby requiring 
special election within 33 days of a vacancy occurring in 
ordinary circumstances.\8\ Wyoming law provides that special 
elections to fill vacancies must be held within 45 days in 
ordinary circumstances.\9\ Further, New York \10\ law provides 
that special elections may be held within as little as 30 days 
and no later than 40 days after the governor issues a writ of 
election to fill a vacancy. Georgia \11\ law provides that 
special elections to fill vacancies may be held within as 
little as 40 days in ordinary circumstances, and Iowa law \12\ 
provides that special elections to fill vacancies may be held 
within as little as 45 days in ordinary circumstances.\13\ R. 
Doug Lewis, Executive Director of the Election Center--a non-
partisan organizations representing the nation's election 
officials--has stated that ``many who are looking at this issue 
do not want to break the tradition of having House members 
being elected rather than being appointed--even for a short 
duration. We have no quarrel with that viewpoint.'' \14\ 
Further, Mr. Lewis has also stated that ``it appears that 
elections administrators [from combined responses nationwide] 
feel that they can conduct an election within as few as 45 
days.'' \15\ In any case, Mr. Lewis stated that ``Election 
administrators . . . will perform well in any national 
emergency.'' \16\
---------------------------------------------------------------------------
    \8\ See Minn. Stat. Sec. 204D.19 (``Special election when the 
congress or legislature will be in session . . . when a vacancy occurs 
and the congress or legislature will be in session so that the 
individual elected as provided by this section could take office and 
exercise the duties of the office immediately upon election, the 
governor shall issue within 5 days after the vacancy occurs a writ 
calling for a special election. The special election shall be held as 
soon as possible . . . but in no event more than 28 days after the 
issuance of the writ.'').
    \9\ See Wyo. Stat. Sec. 22-18-105 (``If the vacancy in the office 
of representative in congress occurs within six (6) months prior to the 
next general election, the vacancy shall be filled at the general 
election. Otherwise the special election shall occur not more than 
forty (40) days after the vacancy occurs. The governor shall declare 
the vacancy and issue the writ of election within five (5) days after 
the vacancy occurs.'').
    \10\ See N.Y. Pub.Off. Sec. 42 (``[T]he governor may in his 
discretion make proclamation of a special election to fill such office, 
specifying the district or county in which the election is to be held, 
and the day thereof, which shall be not less than thirty nor more than 
forty days from the date of the proclamation.'').
    \11\ See Ga. Stat. Sec. 21-2-543 (``Whenever a vacancy shall occur 
or exist in the office of Representative in the United States Congress 
from this State the Governor shall issue, within 10 days after the 
occurrence of such vacancy, a writ of election to the Secretary of 
State for a special election to fill such vacancy, which election shall 
be held on the date named in the writ, which shall not be less than 30 
days after its issuance.'').
    \12\ See Iowa Code Sec. 69.14 (``A special election to fill a 
vacancy shall be held for a representative in Congress, or senator or 
representative in the general assembly, when the body in which such 
vacancy exists is in session, or will convene prior to the next general 
election, and the governor shall order, not later than 5 days from the 
date the vacancy exists, a special election, giving not less than forty 
days' notice of such election.'').
    \13\ Also, the first Presidential Succession statute, enacted in 
1792, required the election of Presidential electors (who chose the 
President) in a period as small as 27 days following a simultaneous 
vacancy in the Presidency and the Vice Presidency in an era in which 
the means of mass communication were exponentially less advanced. The 
1792 statute provided for a process for electing a new President in as 
short as 2 months. See Act of Mar. 1, 1792, ch. 8, Sec. 10, 1 Stat. 
239, 240-41 (repealed 1886) (``[W]henever the offices of President and 
Vice President shall both become vacant, the Secretary of State shall 
forthwith cause a notification thereof to be made to the executive of 
every State, and shall also cause the same to be published in at least 
one of the newspapers printed in each State, specifying that electors 
of the President of the United States shall be appointed or chosen in 
the several States within thirty-four days preceding the first 
Wednesday in December [the date the electors were to cast their votes] 
then next ensuing; Provided, There shall be the space of 2 months 
between the date of such notification and the said first Wednesday in 
December . . .''). This meant that Presidential electors could be 
required to be chosen in as little as 27 days because the Presidential 
electors were required to meet within 34 days of the first Wednesday in 
December to elect the President.
    \14\ R. Doug Lewis, Written Testimony for U.S. House Administration 
Committee (September 24, 2003) at 2.
    \15\ Id. at 3.
    \16\ Id. at 6.
---------------------------------------------------------------------------
    Today, absentee and overseas ballot requests by electronic 
means not involving physical transportation could further 
facilitate the timely conducting of special elections. The 
Pentagon has already developed a system that will allow troops 
overseas to vote over the Internet in the 2004 elections.\17\ 
Touch-screen voting could further reduce the need for poll 
workers, and could even eliminate entirely the need for paper 
ballots. Yet while today's constantly advancing election 
technology will make it much easier in the near future for 
people to exercise their right to elected representation in 
special elections, the adoption of a constitutional amendment 
allowing Congress to deny that right of elected representation 
would be permanent. Expedited special elections might not yield 
flawless voting, but alternative proposals for a permanent 
constitutional amendment would in certain crucial moments in 
American history ban voting entirely, for everyone, everywhere. 
Further, while a catastrophic attack on Washington, D.C. would 
no doubt cause massive disruption in the Nation's capital, the 
situation is likely to be much less severe in localities 
throughout the country where special elections would be 
held.\18\
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    \17\ See Guy Taylor, ``Online Absentee Voting Eliminates 
Postmarks,'' The Washington Times (August 6, 2003) at A4 (``The 
Pentagon is putting the finishing touches on an electronic voting 
system that will allow about 100,000 military personnel and other 
Americans living abroad to cast their ballots through the Internet in 
the 2004 elections . . . The new system, in which each voter is 
assigned a digital signature for voting through a secure Internet 
connection, will replace the postal method of absentee ballots, 
particularly for U.S. troops deployed around the world . . . Postmarks 
will be obsolete under SERVE [the program's acronym], but voters using 
the system will need access to the Internet and Windows software. 
Although she could not offer numbers, Ms. Brunelli [director of the 
Pentagon's Federal Voting Assistance Program] said the `vast majority 
of troops' on deployment overseas have such access, including many of 
those serving in Iraq. Although it won't be impossible for a person 
using SERVE to commit voter fraud, Ms. Brunelli said the digital 
signature, a string of randomly generated letters and characters 
different for each registered voter, makes using the system as secure 
as visiting a voting booth. Committing fraud through SERVE would be no 
less difficult than committing it on election day at a regular polling 
station, she said, adding that the system's security measures are 
``more sophisticated'' than what a person must go through to partake in 
banking transactions through the Internet.''). Security concerns will 
of course have to be worked out in any such electronic voting system, 
and progress in developing such systems can only be obtained through 
trial and error. While a minority of researchers have been critical of 
early attempts at online voting, the project remains promising. See Dan 
Keating, ``Pentagon's Online Voting Program Deemed Too Risky,'' The 
Washington Post (January 22, 2004) at A8 (`` `The concern for security 
is a good thing . . . ,' Glenn Flood [a Pentagon spokesman] said. `But 
we think the thing will be secure, and security will continue to be 
enhanced. We're not going to stop it.' Supporters say the pilot for 
military, government and private citizens abroad is important to learn 
the right way to gather electronic votes and to help overseas voters 
who often have trouble casting ballots. The chance of a security threat 
has to be weighed against the knowledge gained and the improved voting 
access for those people, said R. Michael Alvarez, co-director of the 
CalTech-MIT Voting Technology Project and co-author of `Point, Click 
and Vote,' a recent book about online voting . . . Supporters note that 
the late-arriving overseas ballots contributed to the 2000 Florida 
ballot fiasco. That election led to calls for better voting systems and 
better ways to collect ballots from citizens abroad.'').
    \18\ The Continuity of Government Commission takes an extremely 
pessimistic view of the resiliency of the electoral process nationwide 
following an attack on the Nation's capital, and even of the abilities 
of printing companies to print ballots on an expedited basis. That 
Commission reports that it ``estimates . . . that in the chaos after an 
attack, it would be difficult for even the most expedited elections to 
take place within 3 months. Not only might there be an initial period 
of confusion that would delay the election, but there is also no 
precedent for holding hundreds of special elections at the same time. 
One problem along these lines [is] there are a limited number of ballot 
printing companies, and they are not prepared to print ballots on a 
moment's notice for more than a few races at a time.'' ``The Congress: 
Preserving Our Institutions: The First Report of the Continuity of 
Government Commission'' (May 2003) at 7.
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    Further, just recently, an unscheduled gubernatorial recall 
election went forward in California. In that case, 135 
candidates were certified for a statewide election that would 
occur just 54 days later,\19\ with voters also asked to 
consider two propositions, one concerning the collection of 
racial data and another concerning funding for roads, bridges 
and other public structures. Despite the much greater 
complexity of such an election compared to an expedited special 
election in a single district to fill a vacant House seat, the 
election proceeded smoothly amidst unprecedentedly high voter 
turnout. As The Washington Post reported: ``Voting in 
California's historic gubernatorial recall election appeared to 
go smoothly yesterday, as fears of malfunctioning voting 
equipment and widespread voter confusion over a ballot listing 
135 candidates to replace Gov. Gray Davis (D) failed to 
materialize . . . [T]here were no indications of serious 
problems or irregularities at most polling places across the 
State. According to exit polls, almost nine out of 10 voters 
said they had no problems with the voting equipment or the 
lengthy ballot. Because local elections officials had only a 
few weeks to prepare for the balloting, there were about 10,000 
fewer polling places than usual, which some officials feared 
might depress the turnout. But that did not appear to be the 
case, as the heavy voting continued throughout the day . . . 
The nonpartisan Field Poll projected that as many as 10 million 
Californians would vote in the recall election, a 30 percent 
increase over the 7.7 million people who voted in 2002 when 
Davis was elected to a second term. A turnout of that size, 
representing 65 percent of the State's 15.3 million registered 
voters, would be the largest for any non-presidential election 
in California history . . . Edana Tisherman said she had no 
trouble with the ballot Tuesday. `There's been so much coverage 
of this, it's very simple,' she said. `I said, Four holes, no 
chads, we're gone.' '' \20\
---------------------------------------------------------------------------
    \19\ See ``California Recall Timeline,'' The Washington Times 
(October 8, 2003) at A10.
    \20\ Edward Walsh and Dan Keating, ``Despite Lines, Voting Goes 
Smoothly,'' The Washington Post (October 8, 2003) at A19.
---------------------------------------------------------------------------

                       C. SPEAKER'S ANNOUNCEMENT

    H.R. 2844 provides for the Speaker of the House to make an 
announcement of extraordinary circumstances when more than 100 
seats are vacant. In the event the Speaker is not able to make 
such announcements, a Speaker succession rule has already been 
adopted by the House and is part of the House rules.\21\
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    \21\ In the event the Speaker is physically unable to perform his 
duties, Speaker succession is provided for in House rule I(8)(b)(3), 
which provides that ``In the case of a vacancy in the office of 
Speaker, the next Member on the list [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 authorities of the Office of Speaker as may 
be necessary and appropriate to that end . . . [A] vacancy in the 
office of Speaker may exist by reason of the physical inability of the 
Speaker to discharge the duties of the office.'' Providing for the 
repopulation of a largely depleted House would be necessary and 
appropriate to the end of electing a new Speaker if there were a 
vacancy in the Speaker's office. See also Wm. Holmes Brown and Charles 
W. Johnson, ``House Practice: A Guide to the Rules, Precedents, and 
Procedures of the House'' (108th Congress, 1st Session) (U.S. 
Government Printing Office: 2003) at 638 Sec. 2 (``The Member acting as 
Speaker pro tempore under this provision may exercise such authorities 
of the Office of Speaker as may be necessary and appropriate pending 
the election of a Speaker or Speaker pro tempore.'').
---------------------------------------------------------------------------
    It is also appropriate to grant the Speaker the authority 
to make such announcements because the Speaker already has the 
authority under House rules to adjust the quorum requirement 
downward to reflect deaths that leave seats vacant.\22\
---------------------------------------------------------------------------
    \22\ The House rules were changed at the beginning of the 108th 
Congress to provide that a quorum of the House is a majority of those 
Members duly sworn and elected, and living. House rule XX(5)(c) 
provides that ``Upon the death, resignation, expulsion, 
disqualification, or removal of a Member, the whole number of the House 
shall be adjusted accordingly. The Speaker shall announce the 
adjustment to the House. Such an announcement shall not be subject to 
appeal. In the case of a death, the Speaker may lay before the House 
such documentation from Federal, State, or local officials as he deems 
pertinent.'' This rule essentially codified existing House precedent. 
In 1906, Speaker Cannon established the precedent contained in the 
House Manual, Sec. 53, which provides that ``the decision of the House 
now is that after the House is once organized the quorum consists of a 
majority of those Members chosen, sworn, and living whose membership 
has not been terminated by resignation, or by the action of the 
House.''
---------------------------------------------------------------------------

                           D. JUDICIAL REVIEW

    H.R. 2844 provides for judicial review of announcements of 
vacancies by the Speaker. It is these provisions that are 
within the jurisdiction of the House Judiciary Committee. These 
provisions are based in part on the provision \23\ in the 
Bipartisan Campaign Reform Act of 2002,\24\ and similar 
provisions in other Federal statutes, that provide for review 
by a three-judge panel. This language references 28 U.S.C. 
Sec. 2284, which sets out the procedures by which three-judge 
panels will convene. The judicial review provisions in the bill 
also prohibit appeals from decisions of the three-judge court. 
The provisions also allow State Governors to intervene in the 
case and to have their views heard.
---------------------------------------------------------------------------
    \23\ See 2 U.S.C.Sec. 437h note.
    \24\ Pub. L. No. 107-155.
---------------------------------------------------------------------------

                         E. PROCEDURAL HISTORY

    H.R. 2844 and related issues have had a long procedural 
history. On February 28, 2002, the House Subcommittee on the 
Constitution held a legislative hearing on H.J.Res. 67, a 
proposed constitutional amendment to allow rule by a non-
elected House of Representatives. Witnesses who appeared at the 
hearing included Norman Ornstein of the American Enterprise 
Institute, which issued a report on Continuity in Government, 
Professor Charles Tiefer, who for a decade was the solicitor 
and deputy general counsel for the House of Representatives, 
and Harold Relyea, Expert and Specialist in American National 
Government and emergency preparations for the Congressional 
Research Service.
    During the 107th Congress, a bipartisan working group co-
chaired by then-House Republican Policy Committee Chairman 
Christopher Cox and House Democratic Policy Chairman Martin 
Frost, met regularly to discuss the issues surrounding this 
legislation, and as a result the House passed H.Res.559, whose 
chief sponsor was Representative Cox, expressing the sense of 
the House of Representatives that each State should examine its 
existing statutes, practices, and procedures governing special 
elections so that, in the event of a catastrophe, vacancies in 
the House of Representatives may be filled in a timely fashion. 
Unfortunately, only one State, California, responded to that 
request and expedited their special election laws in the event 
of a catastrophe.
    Consequently, House Judiciary Committee Chairman 
Sensenbrenner and the other original sponsors of H.R. 2844 
responded precisely as the Founders would have expected, by 
acting pursuant to authority under article I, section 4, clause 
1, of the Constitution to ensure that the House of 
Representatives can be repopulated expeditiously in 
extraordinary circumstances. H.R. 2844 received a hearing in 
the House Administration Committee on September 24, 2003, and 
it was marked up and reported out of the House Administration 
Committee on December 8, 2003. The House Judiciary Committee 
received a sequential referral on the portion of the 
legislation within its jurisdiction, and reported out H.R. 2844 
on January 21, 2004.

                                Hearings

    No House Judiciary Committee hearings were held on the 
judicial review provisions of H.R. 2844 over which the 
Committee had jurisdiction. Similar issues were raised in a 
hearing, before the Constitution Subcommittee on H.J. Res. 67 
on February 28, 2002. The Committee on House Administration 
held a hearing on H.R. 2844 on September 24, 2003.

                        Committee Consideration

    On January 21, 2004, the Committee met in open session and 
ordered favorably reported the bill H.R. 2844 with an amendment 
by a recorded vote of 18 to 10, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following recorded vote occurred during the committee 
consideration of H.R. 2844.
    1. Motion to report H.R. 2844, as amended, by a rollcall 
vote of 18 yeas to 10 nays, the motion was agreed to.*

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................
Mr. Conyers.....................................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             18              10
----------------------------------------------------------------------------------------------------------------

    *Note: If Representative Maxine Waters had been present at the time 
of the vote, she would have voted ``Nay.''

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of Rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of Rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2844, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                    Performance Goals and Objectives

    H.R. 2844 does not authorize funding. Therefore, clause 
3(c)(4) of Rule XIII of the Rules of the House of 
Representatives is inapplicable.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 4, clause 1; article I, 
section 5, clauses 1 and 2; and article III, section 2, clauses 
1 and 2 of the Constitution.

               Section-by-Section Analysis and Discussion

    Sec. 1. Short Title. Section 1 provides that the title of 
the Act is the ``Continuity in Representation Act of 2003.'' 
The Committee on the Judiciary adopted a technical amendment to 
change the year to 2004.
    Sec. 2. Requiring Special Elections to Be Held to Fill 
Vacancies in House in Extraordinary Circumstances.
    Section 2 provides for the expedited special election of 
new Members to fill seats left vacant in ``extraordinary 
circumstances.'' ``Extraordinary circumstances'' occur when the 
Speaker of the House announces that vacancies in the 
representation from the States in the House exceeds 100. When 
such ``extraordinary circumstances'' occur, a special election 
must be called within 45 days, unless a regularly scheduled 
general election for the office involved is to be held within 
75 days. Within 10 days of such an announcement by the Speaker, 
the political parties of the State that are authorized to 
nominate candidates by State law may each nominate one 
candidate to run in the election. The bill as introduced 
provided for a 21-day period, but the Committee on House 
Administration adopted an amendment providing for the 45-day 
period, and the Committee on the Judiciary adopted the version 
passed by the Committee on House Administration.
    Section 2 also provides for judicial review of 
announcements of vacancies by the Speaker and references 28 
U.S.C. Sec. 2284, which sets out the procedures according to 
which the three-judge panels are convened. The judicial review 
provisions in the bill also prohibit appeals from decisions of 
the three-judge court. The provisions also allow State 
Governors to intervene in the case and have their views heard.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of Rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

        SECTION 26 OF THE REVISED STATUTES OF THE UNITED STATES

    Sec. 26. [The time] (a) In General.--Except as provided in 
subsection (b), the time for holding elections in any State, 
District, or Territory for a Representative or Delegate to fill 
a vacancy, whether such vacancy is caused by a failure to elect 
at the time prescribed by law, or by the death, resignation, or 
incapacity of a person elected, may be prescribed by the laws 
of the several States and Territories respectively.
    (b) Special Rules in Extraordinary Circumstances.--
            (1) In general.--In extraordinary circumstances, 
        the executive authority of any State in which a vacancy 
        exists in its representation in the House of 
        Representatives shall issue a writ of election to fill 
        such vacancy by special election.
            (2) Timing of special election.--A special election 
        held under this subsection to fill a vacancy shall take 
        place not later than 45 days after the Speaker of the 
        House of Representatives announces that the vacancy 
        exists, unless a regularly scheduled general election 
        for the office involved is to be held at any time 
        during the 75-day period which begins on the date of 
        the announcement of the vacancy.
            (3) Nominations by parties.--If a special election 
        is to be held under this subsection, not later than 10 
        days after the Speaker announces that the vacancy 
        exists, the political parties of the State that are 
        authorized to nominate candidates by State law may each 
        nominate one candidate to run in the election.
            (4) Extraordinary circumstances.--
                    (A) In general.--In this subsection, 
                ``extraordinary circumstances'' occur when the 
                Speaker of the House of Representatives 
                announces that vacancies in the representation 
                from the States in the House exceed 100.
                    (B) Judicial review.--If any action is 
                brought for declaratory or injunctive relief to 
                challenge an announcement made under 
                subparagraph (A), the following rules shall 
                apply:
                            (i) Not later than 2 days after the 
                        announcement, the action shall be filed 
                        in the United States District Court 
                        having jurisdiction in the district of 
                        the Member of the House of 
                        Representatives whose seat has been 
                        announced to be vacant and shall be 
                        heard by a 3-judge court convened 
                        pursuant to section 2284 of title 28, 
                        United States Code.
                            (ii) A copy of the complaint shall 
                        be delivered promptly to the Clerk of 
                        the House of Representatives.
                            (iii) A final decision in the 
                        action shall be made within 3 days of 
                        the filing of such action and shall not 
                        be reviewable.
                            (iv) The executive authority of the 
                        State that contains the district of the 
                        Member of the House of Representatives 
                        whose seat has been announced to be 
                        vacant shall have the right to 
                        intervene either in support of or 
                        opposition to the position of a party 
                        to the case regarding the announcement 
                        of such vacancy.

                           Markup Transcript

                            BUSINESS MEETING

                      WEDNESDAY, JANUARY 21, 2004

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order, and 
a working quorum is present. Pursuant to notice, I now call up 
the bill H.R. 2844, the ``Continuity in Representation Act of 
2003,'' for purposes of markup, and move its favorable 
recommendation to the House. Without objection, the bill will 
be considered as read and open for amendment at any point, and 
the text as reported by the Committee on House Administration, 
which the Members have before them, will be considered as read, 
considered as the original text for purposes of amendment, and 
open for amendment at any point.
    [The Committee Print follows:]

    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes to explain the bill.
    I had introduced this bill on July 24th along with Rules 
Committee Chairman David Dreier and Representatives Candice 
Miller and Tom Cole, who are both former chief State election 
officials, and House Constitution Subcommittee Chairman Steve 
Chabot and Representative Ron Paul. Ranking Member John Conyers 
is also a co-sponsor of this bill. It has the support of the 
Speaker of the House. It received a hearing before the House 
Administration Committee which favorably reported the 
legislation on December 8th of last year.
    This bill will protect the people's right to chosen 
representation. The bill provides for the expedited special 
election of new Members to fill seats left vacant in 
extraordinary circumstances. Extraordinary circumstances occur 
when the Speaker announces that vacancies in the representation 
from the States in the House exceed 100. Under the bill, when 
such extraordinary circumstances occur a special election must 
be called within 45 days unless a regularly scheduled general 
election for the office involved is to be held within 75 days. 
Within 10 days of such an announcement by the Speaker, the 
political parties of the State that are authorized to nominate 
candidates by State law may nominate one candidate to run in 
the election.
    The bill also provides for judicial review of announcements 
of vacancies by the Speaker. For purposes of markup, this 
Committee only has jurisdiction over the judicial review 
provisions which are contained in section 2(b)(4)(B) of the 
bill. These provisions provide for judicial review of the 
announcement of vacancies by the Speaker. They are based on the 
provision in the Bipartisan Campaign Reform Act of 2002 and 
similar provisions in other Federal statutes that provide for a 
review by three-judge panels. These provisions reference 28 
United States Code 2284, which sets out the procedures 
according to which three-judge panels will assemble themselves. 
Congress has the clear constitutional authority to enact this 
bill under article 1, section 4, which states that, quote, 
``Congress may at any time by law make or alter,'' unquote, 
State election laws.
    Consistent with the right to chosen representation, the 
Founders explicitly considered Congress' power to require 
expedited special elections as the solution to potential 
discontinuity of Government in emergency situations. As 
Alexander Hamilton wrote in the Federalist Papers, the 
Constitution gives the 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.'' The Supreme Court has 
unanimously approved such clear congressional authority.
    Senator Cornyn, the Chairman of the Senate Subcommittee on 
the Constitution, has agreed to work with what the House 
determines to be the most appropriate manner of filling House 
seats in emergencies, and I urge swift approval of the 
provisions within our Committee's jurisdiction so that this 
important legislation may move forward expeditiously.
    The gentleman from Michigan.
    Mr. Conyers. Good morning, Mr. Chairman. Happy New Year to 
you and the Members of the Committee.
    We are called now upon to address one of these unfortunate 
potential problems in terms of a national emergency. There are 
several directions that you have outlined, a constitutional 
amendment, a change of the House rules, and a predesignation of 
interim successors, and a final approach which requires States 
to hold special elections within a 45-day time frame. This is a 
problem, and the solutions are going to require careful 
examination. It seems to me that a constitutional solution 
should be avoided at all costs.
    Now, on the quicker approach, the one before us, the 45-day 
time frame, the clear concern is that it may not be enough 
time. We are too long constitutionally, we may be too short on 
a 45-day. Let us see where our discussion leads today. And 
there are some mandates about resources that may not be covered 
here, and I would like to also examine the issue of Member 
disability or incapacity, wherever that might lead. But I do 
want to say that the Chairman has been working with us on a 
cooperative basis, and we have our colleagues on another 
Committee with whom we have to work. And so I am glad that the 
tone of this is starting off and will continue to be on a 
totally nonpartisan basis.
    And I would yield with any time I have left, I would yield 
to any of my colleagues that might have a comment. If not, I 
return the balance of my time.
    Chairman Sensenbrenner. Without objection, all Members' 
opening statements will be placed in the record at this point.
    [The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress From the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    Today we're called upon to address one of the most timely questions 
facing this body: What should be done to ensure the continuity of 
government in the unfortunate event of a future national emergency such 
as 9/11?
    Several proposals have been introduced to address this difficult 
issue. The first approach advocates for a Constitutional amendment 
which would provide for temporary appointments to the House. Another 
concept proposes a change in the current set of House rules allowing 
for the admission of ``emergency delegates'' and the pre-designation of 
``interim successors.'' A final approach, like the bill before us, 
requires states to hold special elections within a forty-five (45) day 
time-frame whenever extraordinary circumstances give rise to an excess 
of one-hundred (100) or more vacancies in the House.
    I initially agreed to serve as an original cosponsor of the 
legislation before us because I generally believe that we should avoid 
amending the Constitution, when a statutory response is available. Such 
an approach is quicker, more likely to be passed into law, and avoids 
amending our most sacred national charter.
    Having said that, I am the first to recognize that the bill before 
us raises several serious concerns. For example, it has been suggested 
that the forty-five (45) day time-frame may be insufficient to conduct 
expedited elections, and lead to the disenfranchisement of many of our 
men and women in the armed services. It also has been brought to my 
attention that the bill contains several unfunded mandates and is 
completely silent on the issue of Member disability or incapacity.
    It is my hope that we can work together on a bipartisan basis with 
our colleagues on the House Administration Committee to resolve these 
issues and come up with a proposal or proposals that we can take to the 
full House. This is not an issue that should necessitate a partisan 
debate.
    I thank the Chairman for his work on this most serious issue.

    [The prepared statement of Ms. Jackson Lee follows:]

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress From the State of Texas

    Chairman Sensenbrenner. Are there any amendments? And the 
Chair would remind the Members that the only part of the bill 
that is within the jurisdiction of this Committee and thus 
amendable is the provision in the bill requiring expedited 
judicial review by a three-judge panel. Are there any 
amendments? If there are no amendments----
    Mr. Watt. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from North Carolina.
    Mr. Watt. I don't have an amendment. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman. And I have listened to 
the Chairman's comments and to the Ranking Member's comments, 
and am encouraged to hear that this is not a partisan issue. 
Since I am about to take a position that is contrary to both 
the Chairman and the Ranking Member, I will be consistent at 
least with that position.
    The thing that is troubling about this is that not long 
after September 11, the Speaker and the Majority Leader--
minority leader, I am sorry, came together and appointed a 
committee that we had been told would consider this issue at 
some length. It was to be chaired by Mr. Dreier, the Chairman 
of the Rules Committee. And part of the reason for that I 
thought was that this legislation or the solution to what is an 
apparent problem that didn't become apparent to most of the 
world until after September 11th kind of transcended the 
jurisdiction of several Committees, no particular Committee, 
House Administration, Judiciary, any of the Committees seemed 
to have full jurisdiction over it. I would submit if any 
Committee does have jurisdiction over the full matter it would 
be the Judiciary Committee. But it seemed to me that the 
Speaker and the leadership in the House decided that this 
should be an issue that should be resolved by a broader range 
of people from several different Committees. I happen to know 
that because I was one of the designees to that Committee that 
was set up by the Speaker and the minority leader. I didn't 
seek the position, I was asked if I would serve, and I say 
yeah, okay, fine. It sounds like a big problem and one that 
needs to be solved.
    And the problem that I am having is that that Committee has 
done nothing. Now, maybe that is why this bill was introduced 
and this Committee is stepping into that void, but it seems to 
me that at a minimum the Members of that Committee ought to 
have been cut into the process, to the extent of being involved 
in the hearings; if there were going to be hearings about any 
bill, all of the bills should have been given some 
consideration. And I am not sure that I have any particular 
problem or brief for this bill, but it doesn't seem to me that 
its moving is a function of anything other than the fact that 
the Chairman of this Committee happens to have introduced it, 
which might make it a good bill but doesn't necessarily make it 
a good bill. And the fact that the Ranking Member has co-
introduced it might make it a good bill, but doesn't 
necessarily so.
    The bottom line is I think this is an issue that cries out 
for substantially broader hearings, and as a consequence--I am 
sure I am whistling in the wind, but I did want to put in the 
record my intention to vote against this bill at this point 
because in my opinion it has not had the requisite hearings. 
And to come 1 day, 2 days after we have been on a break and 
rush to a markup seems to me to be premature.
    Mr. Conyers. Would the gentleman yield?
    Mr. Watt. I would be happy to yield to the Ranking Member.
    Mr. Conyers. Is there a process by which this bill could be 
referred back to the Committee upon which you were named to 
serve and given back to us?
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Watt. If the gentleman would extend for one additional 
minute to respond.
    Chairman Sensenbrenner. Without objection.
    Mr. Watt. I don't know what that process would be. I mean, 
I am frustrated with the other process, too, because that 
Committee, the Chair, the Ranking Member of that Committee has 
done absolutely nothing that I have seen. And maybe that is a 
compelling reason to be pushing this bill. But it seems to me 
that this is a much, much broader issue that requires a lot 
more review.
    Chairman Sensenbrenner. Would the gentleman yield to me?
    Mr. Watt. I would be happy to refer to you.
    Chairman Sensenbrenner. The sequential referral that the 
Speaker gave to this Committee expires on January 31st. So if 
we don't do anything by that time, the bill gets taken away 
from us. One of the things that I have been very insistent on 
to preserve our Committee's jurisdiction is to hold markups 
before our sequentials expire, and that is why we are having a 
markup today.
    Mr. Watt. But Mr. Chairman, what is the consequence of 
that? I mean.
    Chairman Sensenbrenner. Without objection, the gentleman is 
given another minute.
    Mr. Watt. If our Committee's jurisdiction expires, but in 
the process of marking up a bill that has had no hearings on an 
issue of such magnitude----
    Chairman Sensenbrenner. If the gentleman----
    Mr. Watt.--aren't we just rushing to judgment to do 
something?
    Chairman Sensenbrenner. If the gentleman would yield. The 
House Administration Committee did have hearings on this. They 
marked up those parts of the bill that were in their 
jurisdiction. We are having a markup today in dealing with it, 
the one part of the bill that was in our jurisdiction. The 
January 31st date is not determined by anybody on this 
Committee; that is one of the Speaker's prerogatives and he set 
the date.
    Mr. Watt. Mr. Chairman, let me just ask the Chairman a 
question. Does the Chairman have any idea how this all ties in 
with this other Committee that was appointed by the leadership? 
I mean, is there a division of how this will work itself out?
    Chairman Sensenbrenner. If the gentleman would yield. The 
answer is no. But this Chair has been a very firm supporter of 
dealings with legislation through standing Committees that have 
specific jurisdictions under the rules rather than creating ad 
hoc or select Committees like the Homeland Security Committee.
    Mr. Watt. If I could just wrap up, Mr. Chairman. I would 
just say that I am not defending the jurisdiction of a 
Committee that was created on an ad hoc basis. I didn't 
institute this process, I have no vested interest in that 
process. But it seems to me, if the leadership goes out of its 
way to appoint a Committee to do something, one would think 
that it would be of sufficient magnitude that that Committee--
maybe I am taking my beef up with the wrong people, but I just 
wanted to get on the record that there is a separate process 
that was set up to deal with this, and it seems to me under 
those circumstances this is not the process we ought to be 
following. And I plan to vote against it for that reason.
    Chairman Sensenbrenner. The gentleman's time has expired. 
Are there amendments?
    Ms. Lofgren. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from California.
    Ms. Lofgren. I would like to move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. I am concerned. I certainly appreciate the 
Chairman always attempts to protect our jurisdiction. I think 
the Committee is of one mind on that point, that we do want to 
protect our jurisdiction. However, I have a number of concerns 
about the bill before us and will not support it.
    First, you know, I thought a lot about this, and as a 
matter of fact in the last Congress introduced a proposed 
constitutional amendment that would allow the Congress by 
statute to provide for the temporary replacement of House 
Members after a disaster. But as I look at the bill--and here 
as scenario. Last night we were all at the State of the Union, 
and what if there has been a terrorist incident that actually 
resulted in the elimination of all of the Members of the House 
of Representatives and Senate. In the case of the Senate they 
would be appointed, the replacements would be appointed by 
Governors and the Senate could be quickly reconstituted. In the 
case of the House there could be no House and the President 
would of necessity be required to assume dictatorial powers.
    It seems to me that there needs to be an ability in the 
case of a worst-case scenario for the House of Representatives 
to be reconstituted on a temporary basis so that the President 
is not required to assume dictatorial powers and then elections 
quickly to follow. This bill does not do that. I did not 
reintroduce my constitutional amendment in this Congress 
because there was no action in the last Congress. And I guess I 
am inquiring whether, if this bill does not become law, there 
might be a willingness on the part of the Committee to consider 
either my proposed constitutional amendment or another so that 
we could address this need for immediate relief and then a 
quick election, because obviously we don't want appointees to 
serve.
    Chairman Sensenbrenner. Would the gentlewoman yield?
    Ms. Lofgren. I certainly would yield.
    Chairman Sensenbrenner. I think the gentlewoman has I think 
highlighted the difference of opinion on what to do in case 
there is a catastrophe. And that is, whether there should be 
appointed Members should sit in the House of Representatives 
for the first time in the history of our country or, 
conversely, whether we should have some type of expedited 
special election procedure in which the replacement Members are 
elected, and States which have inordinately long special 
election procedures would end up having that short-circuited so 
that representation could be filled in as quick a manner as 
possible.
    I elect for the special election procedure. I respect those 
that feel that we should have some type of appointed system at 
least temporarily, but that would require a constitutional 
amendment. And constitutional amendments, as we know, take a 
very, very long time to consider, to pass in the Congress and 
to be ratified by the States. The Constitution Subcommittee has 
had hearings on this issue, and I think that at least those of 
us who support this bill come down on the side of figuring out 
a way to try to give the voters a chance to elect the 
replacement Members rather than to do as the two most popular 
amendments have proposed to do, and that is either to have a 
Governor appoint a temporary successor or an incumbent Member 
who happened to be wiped out in a terrorist attack designating 
a successor and choosing a successor.
    Now, I am sure that the gentlewoman from California, as do 
I, would not particularly appreciate our Governors appointing a 
successor because we come from opposite parties to the party 
that the Governor has, nor do I think our voters would be very 
happy with us trying to keep a secret saying--who is going to 
be the successor should we be wiped out in a terrorist attack.
    So this is a difference of philosophy. I respect that. I go 
on the side of expedited special elections, and that is what is 
in this bill.
    Ms. Lofgren. Since I have so generously yielded to the 
Chairman, I would ask unanimous consent for an additional 1, 2 
minutes.
    Chairman Sensenbrenner. Without objection.
    Ms. Lofgren. I would just note none of us wants an 
appointed House of Representatives, however, nor do I think 
that the House ought to be an appointed body as the Senate is 
after an incumbent Senator dies. However, the problem of the 
President of necessity seizing dictatorial powers in the case 
of a disaster needs to be addressed. And I think certainly it 
is possible in a constitutional amendment to provide for a very 
short period of time of that appointment. For example, a period 
of--I am just pulling out a number--2 months so that you would 
not have a situation in the Senate where individuals serve for 
a period of 2 years. But I don't think where we might prefer 
the House of Representatives, none of us would argue that the 
Senate is not a democratic body, small d, and it certainly is 
the case, I mean, first that Senators who die can be replaced 
by Governors of a different party. If--that would be the case 
in California and in your State, but it is more important that 
we reconstitute the Government itself, that we have three 
branches of Government that function than that we be hung up on 
partisan issues.
    I would also like to note that in the bill before us 45 
days is probably not enough time to hold elections. It would 
not probably allow for overseas or military voters to 
participate. I think there is a need also to address incapacity 
issues. There probably would not be time for a voter 
registration or primaries or ballot access for independent and 
third party candidates.
    So I appreciate the spirit with which this bill has been 
offered. I think it does not solve the worst case problem that 
we need to solve. And I yield back my time.
    Mr. Conyers. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Conyers. Thank you. Is there a possibility within the 
time the Committee has the jurisdiction of the bill that we 
hold at least one hearing to more fully explore some of the 
reservations that have been articulated here so that this 
measure will not be subject to having been whipped through 
without----
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Conyers. Of course.
    Chairman Sensenbrenner. Given the amount of time that we 
are in session before the 31st of January, I think the answer 
is no, because we have a markup scheduled of important 
legislation already, what is left over from this markup, 
practically all day next Wednesday.
    What I can point out, however, is that the House 
Administration Committee had at least two hearings on this 
subject. We had a general oversight hearing on the subject of 
constitutional amendments before the Subcommittee chaired by 
the gentleman from Ohio, Mr. Chabot. And, really, all that is 
in the jurisdiction of our Committee is whether or not there 
should be a three-judge panel to have an expedited review of 
the Speaker's power to declare an emergency when 100 or more 
seats in the House of Representatives are vacant.
    You know, to answer the questions relative to disability, I 
would prefer to have State law prevail on that. We are 
representatives of States, not national law. And with respect 
to the concern that the gentlewoman from California raised 
relative to overseas and military electors voting by absentee, 
the State of Wisconsin requires that absentee ballots be mailed 
21 days prior to any election. That has never been a problem in 
the ballots reaching people overseas or in the military in a 
timely manner and being returned. And if you look at the time 
frame in this bill, the Speaker declares an emergency 10 days 
after that the parties nominate their candidates; that gives 14 
days to print the ballots and to get them in the mail, which 
should be an adequate period of time. Some States have 
primaries for special elections; other States like Kentucky, 
where there is a special election campaign going on, has the 
parties nominate the candidates and there is no primary 
election.
    You know, I think the object is to fill these vacant seats 
as quickly as possible with people who can come to Congress 
with a mandate, and I think that this bill does it in as quick 
a time as possible given the mechanics of declaring a vacancy, 
nominating candidates, calling an election, and printing the 
ballots and having the people vote.
    Mr. Conyers. Well, Mr. Chairman, your State isn't Florida. 
So let us--you know, I am happy about the 21-day rule in your 
State, but there are States that I don't know if 45 days is 
enough, frankly.
    But at any rate, what I am trying to move toward is the 
mere fact that we will be back sometime between now and the 
expiration of our jurisdiction date, and I would just feel 
better knowing that those who had reservations and objections 
would have been given as much time.
    Now, the jurisdiction question. From my point of view, this 
is a Judiciary Committee matter of which the Administration 
Committee might have found something to get a paragraph or two 
in on.
    Mr. Watt. Would the gentleman yield on that point?
    Mr. Conyers. But I just can't understand how we end up 
being the tail wagging the dog and this other Committee, as 
good and important as it is, ends up deciding a question of 
such constitutional gravity and we get a little section. And I 
yield to my friend from North Carolina.
    Mr. Watt. I thank the gentleman for yielding, and I 
couldn't agree with the gentleman more. If there is any 
Committee that really does and should have jurisdiction over 
it, if the leadership hadn't appointed a kind of an umbrella 
Committee, it should be this Committee. We shouldn't be arguing 
about a three-judge panel. This is a matter of national 
constitutional import, and for the life of me I can't see why 
90 percent, 95 percent of the bill would go to House 
Administration on an issue of this magnitude. I just, I agree 
with the gentleman.
    Mr. Conyers. I will return my time, sir.
    Chairman Sensenbrenner. Are there amendments?
    Mr. Schiff. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Schiff.
    Mr. Schiff. I want to thank the Chairman for yielding, and 
I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. I appreciate all the work that the Chair has 
put into this, and many other Members. I share the concern that 
an undertaking of this magnitude really is deserving of more 
time and opportunity for study for this Committee. We have a 
very thoughtful report by the Continuity of Government 
Commission, and I think many of the Members would benefit from 
having some soft participants of that commission come before 
this Committee, give us an opportunity to question them, ask 
them about really what appear to be the two competing 
philosophies here: Whether we are better off preserving the 
sole body for which all its Members come here with a mandate 
from the electorate or whether it is prudent in the event of a 
catastrophe to have a short-term appointment pending the 
election. I think it is a very legitimate question.
    The Commission that has studied this came down on the 
opposite side of what the Chairman is recommending in his bill. 
I think it would be valuable to bring in not only those that 
advocate these temporary short-term appointments to make sure 
that the gravamen of the problem, the immediate necessity of 
having a check on the executive in the event of a catastrophe 
is properly weighted against the desire to keep the elective 
nature of this body intact. And I would inquire of the Chair of 
the possibility of a letter from the Chair and the Ranking 
Member to the Speaker requesting that this deadline be 
expanded. I would imagine, given the gravity of this issue, a 
bipartisan request for more time to give us the opportunity to 
have an oversight hearing prior to the markup would be looked 
upon with favor by the Speaker. I would ask if that is an 
alternative we might pursue.
    Chairman Sensenbrenner. If the gentleman would yield. We 
already had an oversight hearing before Mr. Chabot's 
Subcommittee. Those issues were very, very adequately 
ventilated at the time by our colleague from Washington, Mr. 
Baird, and others, and I don't see that anything new would come 
out as a result of this. I think we all know what the issues 
are, we all know what the debate is on both sides of the issue. 
There is a philosophical disagreement on that, and the place to 
work the philosophical disagreement out is not in this 
Committee, which was given a very limited jurisdiction by the 
Speaker, and which will not change as a result of House 
Administration reporting the bill out in December, but simply 
sending the bill out to the floor and letting the House work 
its will.
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from California.
    Mr. Schiff. Mr. Chairman, I would be happy to yield such 
time as I have remaining to the gentleman from Virginia.
    Mr. Scott. Thank you.
    Mr. Chairman, I would ask unanimous consent that a letter 
from the gentleman from Connecticut, Mr. Larson, the Ranking 
Member of the House Administration Committee, be entered into 
the record.
    Chairman Sensenbrenner. Without objection.
    [The material referred to follows:]

    
    
    Mr. Scott. The letter points out that on October 2 of 2002, 
the House passed a resolution encouraging States to provide by 
State law provisions to deal with this circumstance. That would 
recognize the difference in various States. I know Virginia, we 
can hold a State house election in 2 weeks, and we have done 
that quite frequently as a matter of fact. Particularly during 
the session if there is a vacancy, 2 weeks from start to 
finish, from the call of the election to the election itself, 2 
weeks, and the person would be seated 2 days after that. Some 
States might not want to do that, but if Virginia wants to do 
it that ought to be Virginia's decision. 45 days, therefore, 
might be enough in some areas, might be too much in others.
    It also points out to a one-size-fits-all problem, that if 
you have problems of ballot access, how minor parties get on. 
Some States have runoffs, some States, as the Chairman has 
mentioned, have primaries, some can waive primaries. It may be 
best to just leave this to the States to deal with it itself. 
The States will know that there is a crisis and they need to be 
filled. And so I would just like this letter in the record and 
for the record.
    Chairman Sensenbrenner. It is the gentleman from 
California's time.
    Mr. Schiff. I would be glad to yield.
    Mr. Watt. Mr. Chairman, I don't want to beat this to death, 
but I just think this discussion illustrates the dire need for 
more study of this issue and some hearings. This is a very 
complex issue. It deals with appointment versus election, it 
deals with providing opportunities not only for a rush, rush, 
rush election, but for a real democratic election. I mean, a 
short period for an election limits the number of candidates to 
only the richest people probably in every State. I mean, there 
are all kinds of implications that are at play here that need 
to be studied. And maybe there was a hearing in the 
Constitution Subcommittee; it wasn't even on this bill. But 
this Committee really or some Committee, either the big 
Committee that was appointed by the Speaker or this Committee, 
needs to take ownership of this issue. And in the absence of 
that, I would encourage my colleagues to vote against this bill 
today.
    Chairman Sensenbrenner. The gentleman's time has expired. 
Are there amendments? The gentlewoman from California.
    Ms. Sanchez. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Sanchez. I wish to associate myself with some of the 
previous comments that were made by my colleagues regarding the 
possible disenfranchisement of voters that this bill has the 
potential to do. It has been mentioned about third party 
candidates, it has been mentioned about overseas and absentee 
ballots and whether 45 days would be an adequate time to get 
States to be able to get those out and get them printed, get 
them out in time, and receive them back for the election. 
Perhaps for smaller States 45 days might seem like a lot of 
time. But when you consider the State of California, which has 
53 of the Members of Congress in it and an extremely large 
population in comparison to the other States, it is a logical I 
think acrobatic fete to try to complete all of that without 
disenfranchising voters within 45 days. So I would agree that I 
think that this Committee needs to take a harder look at it and 
I can certainly understand wanting to preserve our jurisdiction 
over the issue. But it is, as my colleague Mr. Watt said, an 
issue that strikes at the very heart of our Constitution and 
has constitutional import. And so I don't believe that giving 
it such short shrift is really ideal in this case. And I agree 
that we should perhaps think about in the future an honest and 
real debate by the full Committee on issues such as this that 
have constitutional import. And with that, I will yield back 
the remainder of my time.
    Chairman Sensenbrenner. Are there amendments? If there are 
no amendments, a reporting quorum is present. Without 
objection, the short title is amended by striking 2003 and 
inserting 2004. Without objection, the version of the bill as 
reported by the House Administration Committee and laid down as 
the base text is adopted.
    The question occurs on the motion to report the bill H.R. 
2844 favorably. All those in favor will say aye. Opposed, no. 
The ayes appear to have it. The ayes have it.
    Mr. Watt. Ask for a recorded vote.
    Chairman Sensenbrenner. A recorded vote is ordered. The 
question is on reporting H.R. 2844 favorably. Those in favor 
will as your names are called answer aye; those opposed no. And 
the Clerk will call the roll.
    The Clerk. Mr. Hyde.
    [no response.]
    The Clerk. Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble votes aye.
    Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith votes aye.
    Mr. Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly votes aye.
    Mr. Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte votes aye.
    Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot votes aye.
    Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins votes aye.
    Mr. Cannon.
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon votes aye.
    Mr. Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus votes aye.
    Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler votes aye.
    Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green votes aye.
    Mr. Keller.
    Mr. Keller. Aye.
    The Clerk. Mr. Keller votes aye.
    Ms. Hart.
    Ms. Hart. Aye.
    The Clerk. Ms. Hart votes aye.
    Mr. Flake.
    [no response.]
    The Clerk. Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence votes aye.
    Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes votes aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King votes aye.
    Mr. Carter.
    Mr. Carter. Aye.
    The Clerk. Mr. Carter votes aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney votes aye.
    Mrs. Blackburn.
    [no response.]
    The Clerk. Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers votes no.
    Mr. Berman.
    [no response.]
    The Clerk. Mr. Boucher.
    Mr. Boucher. No.
    The Clerk. Mr. Boucher votes no.
    Mr. Nadler.
    [no response.]
    The Clerk. Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott votes no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt votes no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren votes no.
    Ms. Jackson Lee.
    [no response.]
    The Clerk. Ms. Waters.
    [no response.]
    The Clerk. Mr. Meehan.
    Mr. Meehan. No.
    The Clerk. Mr. Meehan votes no.
    Mr. Delahunt.
    [no response.]
    The Clerk. Mr. Wexler.
    [no response.]
    The Clerk. Ms. Baldwin.
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin votes no.
    Mr. Weiner.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner votes no.
    Mr. Schiff.
    Mr. Schiff. No.
    The Clerk. Mr. Schiff votes no.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez votes no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. The Chairman votes aye.
    Chairman Sensenbrenner. Are there Members who desire to 
record or change their votes? If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 18 ayes and 10 nays.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to. Without objection, the bill will be reported 
favorably to the House in the form of a single amendment in the 
nature of a substitute incorporating the----
    Ms. Waters. Mr. Chairman?
    Chairman Sensenbrenner. The Chair has announced the result 
of the rollcall. Would the gentlewoman from California wish to 
make a statement on how she would have voted?
    Ms. Waters. Yes, Mr. Chairman. I would have voted no.
    Chairman Sensenbrenner. Without objection, the 
gentlewoman's statement will appear in the statement following 
the rollcall.
    Again, without objection, the bill will be reported 
favorably to the House in the form of a single amendment in the 
nature of a substitute incorporating the amendment adopted here 
today. Without objection, the Chairman is authorized to move to 
go to conference pursuant to House rules. Without objection, 
the staff is directed to make any technical and conforming 
changes, that all Members will be given 2 days as provided by 
the House rules in which to submit additional dissenting 
supplemental or minority views.

                            Dissenting Views

    The House Judiciary Committee favorably reported H.R. 2844, 
the ``Continuity in Representation Act of 2003,'' by a vote of 
18-10, following a narrow sequential referral from the House 
Administration Committee. H.R. 2844 addresses the critical 
issue of how House vacancies are to be filled in the event a 
substantial number of Members are killed or incapacitated by a 
terrorist attack or other catastrophic incident. Although that 
issue, and how it is resolved, is a matter of national 
constitutional import, the referral to this Committee limited 
our jurisdiction to a single provision--the provision 
authorizing judicial review by a three-judge panel of the 
announcement by the Speaker that a sufficient number of 
vacancies exist to trigger the special election requirements of 
the bill. In our view, it is an abrogation of this Committee's 
responsibility to restrict our consideration to such a 
minuscule, and arguably inconsequential, portion of the bill 
while avoiding the broader issues that implicate the very 
foundation of our tripartite form of government.
    The events of September 11, 2001 brought into sharp focus 
the potential for the sudden, cataclysmic disruption of 
operations in one or more branches of our government. 
Specifically, had United flight 93 reached its intended 
destination the U.S. Capitol dome--the death or severe injury 
or disability of innumerable Members of Congress would have 
been imminent. Under the Constitution, although the 17th 
Amendment permits State governors to appoint Senators to vacant 
seats \1\, there is no comparable provision for the prompt 
replacement of Members of the House of Representatives. 
Instead, article I, section 2, clause 4 of the Constitution 
requires the executive authority of a State in which a vacancy 
occurs in the House to order a special election to fill the 
vacancy. But, Congress has the power under article I, section 
4, clause 1 of the Constitution to ``make or alter'' State laws 
governing ``the times, places and manner of holding elections'' 
for Members of the House of Representatives. Pursuant to that 
authority, H.R. 2844 would require the States, upon 
announcement by the Speaker of the House that the number of 
vacancies exceeds 100, to conduct special elections within 45 
days of the announcement.
---------------------------------------------------------------------------
    \1\ The 17th Amendment provides no resolution in the event of 
widespread incapacitation of a majority of Senators. A vacancy has 
typically been understood to exist upon the death, resignation or 
expulsion of a Senator.
---------------------------------------------------------------------------
    The only Committee to conduct hearings on H.R. 2844, the 
House Administration Committee, was deeply divided on the 
questions whether the bill adequately addresses the myriad 
issues concerning the continuity of Congress and whether the 
bill, independent of those issues, posed a workable solution, 
i.e., whether it would be feasible to conduct widespread 
special elections during a period of incalculable vacancies and 
national chaos. By a vote of 4-3, the bill was reported out of 
the House Administration Committee over the vigorous and 
comprehensive dissent of the minority. While it is unnecessary 
to repeat the substantive concerns enumerated in the minority's 
dissenting views, it is important to emphasize its concern with 
the process. The dissent argued that the ``bill's narrow focus 
ignores broader questions of congressional continuity,'' and 
recognized that proposals advocating a constitutional amendment 
to address House vacancies ``if considered in the House, would 
fall under the jurisdiction of the House Judiciary Committee.'' 
H. Rept. 108-404, pp. 12, 14. Yet H.R. 2844 has been tailored 
so as to avoid the scrutiny that we believe is warranted by 
this Committee.
    At the markup of this bill, Chairman Sensenbrenner cited 
the expiration of this Committee's sequential referral on 
January 31, 2004 as an impediment to conducting hearings on the 
broader issue of congressional continuity--including the 
possibility of a constitutional amendment--before the Judiciary 
Committee.\2\ Yet as early as September 2003, in testimony 
before the House Administration Committee in support of H.R. 
2844, Chairman Sensenbrenner indicated that there would be no 
further consideration of proposals to address filling House 
vacancies in the event of a national emergency in the 108th 
Congress by this Committee. The sole hearing by this Committee 
on this issue was held before the Subcommittee on the 
Constitution during the 107th Congress on February 28, 2002. 
H.J. Res. 67,\3\ ``Providing for the Temporary Filling of House 
Vacancies,'' called for a constitutional amendment to authorize 
the temporary appointment of individuals to fill House 
vacancies in a time of national emergency. There was, however, 
no Subcommittee markup or Full Committee consideration of the 
measure.\4\
---------------------------------------------------------------------------
    \2\ The Chairman also rejected the suggestion of Mr. Schiff of 
California to seek, through the Chairman and the Ranking Member, an 
extension of the referral from the Speaker.
    \3\ H.J.Res. 67 was introduced by Rep. Baird of Washington in the 
107th Congress.
    \4\ The Judiciary Committee certainly is not loathe to consider 
proposals to amend the Constitution. Since the attacks on 9/11, the 
Judiciary Committee has held hearings or markups on at least three 
proposals to amend the Constitution: May 21, 2003--Full Committee 
Markup of H.J. Res. 4, Proposing an amendment to the Constitution of 
the United States authorizing the Congress to prohibit the physical 
desecration of the flag of the United States; May 1, 2003--Subcommittee 
on the Constitution Markup of H.J. Res.22, the ``Balanced Budget 
Amendment;'' March 6, 2003--Subcommittee on the Constitution 
Legislative Hearing on H.J. Res. 22, the ``Balanced Budget Amendment,'' 
and May 9, 2002--Subcommittee on the Constitution Legislative hearing 
on H.J. Res.91, the ``Victims Rights Amendment,'' a Proposed Amendment 
to the United States Constitution.
---------------------------------------------------------------------------
    Moreover, much has happened since the Subcommittee hearing 
on H.J. Res. 67. Several bills have been introduced in the 
House and the Senate urging a constitutional amendment. Also, 
significantly, the Continuity of Government Commission, a joint 
project of the American Enterprise Institute and the Brookings 
Institute, after months of study, issued a report in May 2003 
recommending an approach totally at odds with H.R. 2844. 
Instead, the Commission concluded that the better approach was 
to pass a constitutional amendment to address mass vacancies in 
the Congress. The Commission was headed by honorary co-chairs 
former Presidents Jimmy Carter and Gerald Ford, and co-chairs 
Lloyd Cutler and former Senator Alan Simpson. Its members 
consisted of a diverse group of public servants (including 
former members of the House and Senate) such as Kenneth 
Duberstein, Thomas Foley, Charles Fried, Newt Gingrich, 
Nicholas Katzenbach, Kwesi Mfume, Leon Panetta and Donna 
Shalala. While we do not suggest that this Committee simply 
accept the recommendations of an outside panel, no matter how 
distinguished, of experts and scholars, we do believe that it 
is our obligation to review, consider and evaluate all 
available research on this issue before casting a vote that 
will define the stability or instability of our democracy for 
years to come.
    After September 11, 2001, the unimaginable have become 
imaginable. A constitutional amendment to address the now 
imaginable circumstance of massive House vacancies may or may 
not be necessary. What is necessary, however, is that this 
Committee assumes its responsibility to vet seriously and fully 
the wide array of proposals, and their implications, to fill 
House vacancies in the event of a national calamity. Our 
obligation to our constituents, indeed to our democracy, 
requires no less. Because the Committee has opted instead to 
rush through what may be an ill-advised statutory fix, we 
dissent.

                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Anthony D. Weiner.
                                   Adam B. Schiff.
                                   Linda T. Sanchez.

                            Additional Views

    Several proposals have been introduced to address the 
difficult issue of congressional succession, the procedures 
that should be in place in the eventuality that a substantial 
number of Members must be replaced in a short period of time. 
Such an eventuality would likely be the result of a devastating 
national emergency, such as a large scale terrorist attack. 
Unfortunately, after September 11, such an attack is no longer 
unthinkable.
    In addition to being difficult, this is a issue central to 
our democracy that places notions embodied in our Constitution 
at odds with one another. The Framers believed in a ``people's 
House,'' directly responsive to the public because it is 
directly elected by the public. However, fundamental to the 
Constitution is also the necessity of checks and balances--
ensuring that there will not be an unchecked Executive 
necessitates a constantly functioning Legislative branch. Thus, 
replacing a large number of House Members quickly may require 
forgoing or modifying existing procedures for direct elections. 
Resolving this constitutional quandary may require the 
preemption of state laws governing the time and manner of 
holding special elections, the appointment of congressional 
successors by a state executive, or the designation of 
successors by Members of Congress.
    This bill attempts to preserve the system of direct 
election by making only minimal changes to state election laws 
and continuing to allow the public to elect the ``people's 
House.'' The Chairman reached out to me to cosponsor the bill 
and, because of its goal of preserving direct election and my 
general opposition to amending the Constitution, I am an 
original cosponsor of the bill. Critics have made the argument 
that such minimal changes, however, may fall short of providing 
a workable solution. Among other things, they assert that 45 
days would be an insufficient amount of time for most states to 
hold special elections and that the interim 45 days would be 
too long a period of time for the nation to be without a 
functioning House.
    Critics have proposed Constitutional amendments that would 
provide for temporary appointments to the House and proposals 
to change House rules allowing for the admission of ``emergency 
delegates'' to the Committee of the Whole and the pre-
designation of ``interim successors'' by Members. Each of these 
proposals has substantial merit. However, these proposals may 
be criticized as being too unwieldy to be passed by Congress. A 
Constitutional amendment, for example, requires the assent of 
\2/3\ of the Congress and three-fourths of state legislators. 
This process is intended to be difficult and the Constitution 
is rarely amended.
    Because of the very nature of this issue--ensuring a fair 
and nonpartisan process for succession--I believe it cries out 
for a bipartisan consensus and careful consideration. 
Unfortunately, to date, there are too many unanswered questions 
about this bill and too much opposition against it. I must, 
therefore, reluctantly conclude that there has been 
insufficient consideration and a resultant lack of consensus. 
I, therefore, voted against this bill in Committee and will 
continue to oppose it until a broader consensus is reached.

                                   John Conyers, Jr.

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