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

2

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 

3

1Federalist No. 52 (Madison), at 327 (Clinton Rossiter ed., 1961) (emphasis added). 

2Federalist 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). 

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

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 

4

3Federalist 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. 5See Sula P. Richardson, ‘‘House Vacancies: Proposed Constitutional Amendments for Filling 

Them Due to National Emergency’’ CRS Report for Congress (RL–32031) at 5. 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...’’. 

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. 

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). 

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 

5

7Federalist 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). 

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

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 

6

8See Minn. Stat. § 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.’’). 9See Wyo. Stat. § 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.’’). 10See N.Y. Pub.Off. § 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.’’). 11See Ga. Stat. § 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.’’). 12See Iowa Code § 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, § 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. 

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. 

7

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. 17See 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.’’). 

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

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 

8

18The 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. 19See ‘‘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. 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.’’

less severe in localities throughout the country where special elections would be held.18

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 nonpresidential 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

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

9

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 § 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.’’). 22The 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, 

§ 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.’’ 23See 2 U.S.C.§ 437h note. 24Pub. L. No. 107–155. 

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

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. § 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. 

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 cochaired 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 

10

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

11

ROLLCALL NO. 1—Continued

Ayes Nays Present 

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. Sa ́nchez ...................................................................................................... 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:

12


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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. § 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):

17

SECTION 26 OF THE REVISED STATUTES OF THE 

UNITED STATES

SEC. 26. øThe 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 

18

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:]

19

[COMMITTEE PRINT]

[Showing H.R. 2844 as Reported by the Committee on House

Administration]

108TH CONGRESS

1ST SESSION H. R. 2844

[Report No. 108–404]

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.

IN THE HOUSE OF REPRESENTATIVES

JULY 24, 2003

Mr. SENSENBRENNER (for himself, Mr. DREIER, Mrs. MILLER of Michigan,

Mr. COLE, Mr. CHABOT, and Mr. PAUL) introduced the following bill;

which was referred to the Committee on House Administration.

DECEMBER 8, 2003

Reported from the Committee on House Administration with an amendment;

referred sequentially to the Committee on the Judiciary for a period ending not later than January 31, 2004 for consideration of such provisions

of the bill and amendment as fall within the jurisdiction of that committee pursuant to clause 1(k), rule X.

[For text of introduced bill, see copy of bill as introduced on July 24, 2003]

A BILL

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


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20

2

House of Representatives in extraordinary circumstances,

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Continuity in Rep5 resentation Act of 2003’’.

6 SEC. 2. REQUIRING SPECIAL ELECTIONS TO BE HELD TO

7 FILL VACANCIES IN HOUSE IN EXTRAOR8 DINARY CIRCUMSTANCES.

9 Section 26 of the Revised Statutes of the United

10 States (2 U.S.C. 8) is amended—

11 (1) by striking ‘‘The time’’ and inserting ‘‘(a)

12 IN GENERAL.—Except as provided in subsection (b),

13 the time’’; and

14 (2) by adding at the end the following new sub15 section:

16 ‘‘(b) SPECIAL RULES IN EXTRAORDINARY CIR17 CUMSTANCES.—

18 ‘‘(1) IN GENERAL.—In extraordinary cir19 cumstances, the executive authority of any State in

20 which a vacancy exists in its representation in the

21 House of Representatives shall issue a writ of elec22 tion to fill such vacancy by special election.

23 ‘‘(2) TIMING OF SPECIAL ELECTION.—A special

24 election held under this subsection to fill a vacancy


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21

3

1 shall take place not later than 45 days after the

2 Speaker of the House of Representatives announces

3 that the vacancy exists, unless a regularly scheduled

4 general election for the office involved is to be held

5 at any time during the 75-day period which begins

6 on the date of the announcement of the vacancy.

7 ‘‘(3) NOMINATIONS BY PARTIES.—If a special

8 election is to be held under this subsection, not later

9 than 10 days after the Speaker announces that the

10 vacancy exists, the political parties of the State that

11 are authorized to nominate candidates by State law

12 may each nominate one candidate to run in the elec13 tion.

14 ‘‘(4) EXTRAORDINARY CIRCUMSTANCES.—

15 ‘‘(A) IN GENERAL.—In this subsection,

16 ‘extraordinary circumstances’ occur when the

17 Speaker of the House of Representatives an18 nounces that vacancies in the representation

19 from the States in the House exceed 100.

20 ‘‘(B) JUDICIAL REVIEW.—If any action is

21 brought for declaratory or injunctive relief to

22 challenge an announcement made under sub23 paragraph (A), the following rules shall apply:

24 ‘‘(i) Not later than 2 days after the

25 announcement, the action shall be filed in


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22

4

1 the United States District Court having ju2 risdiction in the district of the Member of

3 the House of Representatives whose seat

4 has been announced to be vacant and shall

5 be heard by a 3-judge court convened pur6 suant to section 2284 of title 28, United

7 States Code.

8 ‘‘(ii) A copy of the complaint shall be

9 delivered promptly to the Clerk of the

10 House of Representatives.

11 ‘‘(iii) A final decision in the action

12 shall be made within 3 days of the filing

13 of such action and shall not be reviewable.

14 ‘‘(iv) The executive authority of the

15 State that contains the district of the

16 Member of the House of Representatives

17 whose seat has been announced to be va18 cant shall have the right to intervene either

19 in support of or opposition to the position

20 of a party to the case regarding the an21 nouncement of such vacancy.’’.


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5

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.


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24

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. 

25

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:]

26

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS


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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 cointroduced 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 

33

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 

34

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 

35

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. 

36

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 ComVerDate jul 14 2003 10:21 Jan 29, 2004 Jkt 029006 PO 00000 Frm 00036 Fmt 6659 Sfmt 6601 E:\PICKUP\HR2844 HR2844
37

mittee 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. 

38

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:]

39


g:\graphics\Larson1.eps
40


g:\graphics\Larson2.eps
41


g:\graphics\Larson3.eps
42

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. SA ́ NCHEZ. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. SA ́ NCHEZ. 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 

43

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. 

44

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. 

45

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. Sa ́nchez. 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez 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. 

(47)

1The 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. 

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. 

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 

48

2The 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. 

4The 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. 

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

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 

49

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. SA ́ NCHEZ. 

(51)

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 

52

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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