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92–238 2004

MARK-UP OF H.R. 2844, THE CONTINUITY IN

REPRESENTATION ACT OF 2003

HEARING

BEFORE THE

COMMITTEE ON HOUSE 

ADMINISTRATION 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

HEARING HELD IN WASHINGTON, DC, NOVEMBER 19, 2003

Printed for the use of the Committee on House Administration

(

(II)

COMMITTEE ON HOUSE ADMINISTRATION 

BOB NEY, Chairman

VERNON J. EHLERS, Michigan 

JOHN L. MICA, Florida 

JOHN LINDER, Georgia 

JOHN T. DOOLITTLE, California 

THOMAS M. REYNOLDS, New York 

JOHN B. LARSON, Connecticut 

Ranking Minority Member

JUANITA MILLENDER-MCDONALD, 

California 

ROBERT A. BRADY, Pennsylvania 

PROFESSIONAL STAFF

PAUL VINOVICH, Staff Director 

GEORGE SHEVLIN, Minority Staff Director

(1)

MARKUP OF H.R. 2844, THE CONTINUITY IN 

REPRESENTATION ACT OF 2003 

WEDNESDAY, NOVEMBER 19, 2003

HOUSE OF REPRESENTATIVES, COMMITTEE ON HOUSE ADMINISTRATION, Washington, DC. 

The committee met, pursuant to call, at 10:17 a.m., in Room 

1310, Longworth House Office Building, Hon. Robert W. Ney 

[chairman of the committee] presiding. 

Present: Representatives Ney, Ehlers, Mica, Linder, Larson, 

Millender-McDonald, and Brady. 

Staff Present: Paul Vinovich, Staff Director; Fred Hay, Counsel; 

Matt Petersen, Counsel; George Shevlin, Minority Staff Director; 

and Matt Pinkus, Minority Professional Staff. 

The CHAIRMAN. The committee is now in order for the purpose 

of consideration of House Resolution 2844, the Continuity in Representation Act of 2003. 

It has now been over 2 years since the horrific events of September 11, 2001, a day in which terrorist enemies of the United 

States murdered thousands of innocent American citizens in cold 

blood and struck devastating blows against symbols of our country’s economic and military power. Since that grim day we have 

been forced to contemplate the dreadful possibility of a terrorist attack aimed at the heart of our Nation’s government here in Washington, D.C., possibly carried out with nuclear, chemical, or biological weapons of mass destruction. Such an attack could potentially 

annihilate substantial portions of our Federal Government and kill 

or maim hundreds of Members of Congress. Though we earnestly 

pray we are never confronted with such an awful event, we have 

a duty as elected Representatives of the people of the United States 

to ensure that the people’s House continues to operate effectively 

in the event of a catastrophic terrorist attack. 

I know no one wants to talk about the potential demise of themselves, but it is something I think we face today in our world, and 

we can just see in the last 2 years things happened that we 

wouldn’t believe could have happened in this complex. 

This past September this committee held a hearing on H.R. 2844, 

to allow leading thinkers on the issue of congressional continuity 

to provide insight on the many different aspects of this congressional and consequential issue. To restate what I said then, the debate on this subject essentially divides it into two camps: those who 

view a quick reconstitution of the House as the most important 

consideration and thus support a constitutional amendment allowing for the appointment of temporary replacements to fill vacant 

2

House seats, and those who believe retaining the House’s elected 

character is paramount and therefore support expedited special 

elections as the exclusive means for reconstituting the House of 

Representatives. 

Though the two sides of the debate disagree on many fundamental issues, both agree that expedited elections should be part 

of the solution to this complex and difficult question. For this reason, the committee has scheduled this markup to consider H.R. 

2844, which establishes a framework for conducting expedited special elections to fill House vacancies resulting from a catastrophic 

terrorist attack. 

As originally drafted, the Continuity in Representation Act calls 

for expedited special elections to be held within 21 days of the 

Speaker of the House announcing that more than 100 vacancies 

exist in the House of Representatives. The political parties authorized by the State law to make nominations would then have up to 

14 days after the Speaker’s announcement to nominate a candidate. However, the State would not have had to hold an expedited special election if a regularly scheduled general election were 

to be held within 51 days of the Speaker’s announcement, thus in 

essence providing the 30-day extension for such States. 

The original version of H.R. 2844 also contained among other 

things a provision stating that the Speaker’s announcement of 100 

or more vacancies could not be appealed. 

Today I will be offering an amendment in the nature of a substitute to H.R. 2844. The amendment retains the basic framework 

of the original bill but alters the time frames and makes other 

technical adjustments. 

The deadline for holding an expedited special election following 

the announcement by the Speaker of more than 100 vacancies has 

been increased from 21 days to 45 days. The theory behind this is 

to make the election process work a little bit better. It was felt that 

21 days may not be able to be met, but yet it did not need to go 

too far down the road. This change is deemed necessary to accommodate the concerns, again, of election officials who felt the 21-day 

time frame was too short and may not have allowed for adequate 

preparation. And I can tell you that those concerns were from both 

sides of the aisle of election officials. 

The amendment also shortens the time frame within which State 

party officials may nominate a candidate from 14 days to 10 days 

after the Speaker’s announcement. The shortened nomination period would provide additional time on the back end for election officials to print ballots, test election systems, recruit poll workers, et 

cetera, while still allowing party officials adequate time to make 

candidate nominations. Just as the original bill provided a 30-day 

extension from 21 to 51 days for States whose election machinery 

was already in motion, the amendment likewise extends the 45-day 

period for holding an expedited special election by 30 days under 

those circumstances that I previously mentioned. 

Therefore, the amendment states that if a State is scheduled to 

hold a general election within 75 days of the Speaker’s announcement of more than 100 vacancies, it would need to schedule—it 

would not need to schedule an expedited special election. Nature 

would take its course on what was already scheduled. 

3

Finally, the amendment deletes section 4(b) of the original bill. 

The Parliamentarian determined that this section, which stated 

that the Speaker’s announcement of House vacancies in excess of 

100 could not be appealed, was unnecessary since it is already duplicative of current House rules. The committee takes no position 

on any proposed constitutional amendments that would provide for 

the appointment of temporary replacements to fill vacant House 

seats, since amendments to the Constitution are outside. However, 

even if the committee were inclined to take a stance on issues outside of this jurisdiction, it is unaware of any constitutional amendments regarding congressional continuity that have been introduced in the House on which it could take a position at this time. 

Some will claim this bill is inadequate and only a constitutional 

change will address this problem. They will assert that expedited 

elections will result in disenfranchisement of absentee and military 

voters, among others. While no election is perfect, it is true that 

conducting them on a shortened time frame could make them even 

less perfect than we would prefer under ideal circumstances, and 

this is something I fully recognize. Those who view this as a defect 

of legislation, though, should compare the danger of 

disenfranchising some percentage of the population against the certainty of disenfranchising 100 percent of the population of the 

country if Members no one voted for are allowed to be appointed 

and allowed to serve. 

Regardless of one’s view on the appointment question, we should 

all agree that rapid reconstitution of elected bodies should be our 

goal. This legislation advances that goal. Therefore, the committee 

seeks to move this process forward by marking up H.R. 2844 which 

furthers the essential objective, ensuring a functioning House 

would be in place with the ability to operate with legitimacy in the 

wake of a catastrophic attack. 

I appreciate the members for being here today, and I want to 

defer to our Ranking Member, Mr. Larson of Connecticut. 

Mr. LARSON. Thank you, Mr. Chairman. 

Mr. Chairman, I want to begin by first complimenting you for 

holding the continuity of government hearing back on September 

the 24th, which ranged over the entire landscape, as you have 

noted in your comments, on the continuity of the government issue. 

Now, I can honestly say, though, in my relatively short tenure 

as a Member of the House, this was perhaps one of the most illuminating presentations and give-and-take between members and 

witnesses that I have had an occasion to participate in and to learn 

from and enjoy. I especially want to point out that both Chairmen 

Sensenbrenner and Dreier made a vigorous presentation of their 

strongly held views, and it was useful for those of us who may 

strongly disagree to engage in debate with those who feel passionately about this issue. 

I also want to express my thanks to the panelist scholars, the officials, and the group representatives who participated. Norm 

Ornstein and Tom Mann and the Continuity of Government Commission have led the public discussion of this issue since 9/11. Doug 

Lewis of the Election Center and Minnesota Secretary of State 

Mary Kiffmeyer thoughtfully presented to us the difficulties in conducting elections under adverse circumstances and with artificial 

4

time frames. Don Wolfensberger of the Woodrow Wilson Center 

demonstrated how minds can change—in his case, on the subject 

of congressional disability—and consider possible compromises 

after exposure to vigorous debate. 

Representatives Frost and Baird, who oppose the bill before us 

today and support a constitutional amendment, should be congratulated for their leadership. Representative Frost played a critical role in sensitizing Members of Congress to these issues in his 

work as co-chair on the Task Force on Continuity with Representative Cox. Representative Baird has introduced a thoughtful constitutional amendment in the last Congress and is preparing another version, and has been working with the Parliamentarian on 

this issue since this tragic event of September 11th. 

I emerged from that hearing myself strongly supportive of a constitutional amendment, because I believe it provides the best remedy for what I believe the Chairman has articulated eloquently in 

his opening comments: for all of us to face a potential demise, and 

a demise that if it was of a catastrophic nature would probably be 

at the hands of terrorists. And the one thing that terrorists have 

to be assured of is that democracy is prepared to stand back up immediately. 

In the aftermath of September 11th, in a matter of only days, this Congress acted on $40 billion. This Congress acted to take immediate and appropriate steps. Even with the provisions and the 

enhancements in the H.R. 2844, which I believe is thoughtful, I 

clearly understand the concept of making sure that the House is 

an elected body. But I wanted to quote an old sage of Congress and 

someone who I believe demonstrated quite well the concerns that 

I share. That is former Senator Alan Simpson from Wyoming, who 

was the co-chair of the Continuity Commission, and who at a recent hearing said the troublesome part in this continuum mantra—

that is we don’t want to alter the character of the House—is it 

comes from pride. ‘‘I am going to call it that, saying that we have 

always been directly elected by the people.’’ He said. ‘‘That phrase 

comes from those who oppose what we do. They say we can’t have 

anything like that because it would alter the character of the 

House.’’

‘‘The people’s House. A direct election. How troubling. How unAmerican. How undemocratic. I want to ask them a question. What 

more could alter the character of your body than bodies?’’

I agree with Senator Simpson that a functioning House, even in 

a temporarily modified form, is far better than no House at all. No 

House means no Congress, no legislation, and, in the end, no voice 

for the people and no more democracy. It would also, as anyone 

who seeks to bring down this government would understand, create 

chaos in a time when the immediate message and resolve of this 

great institution of ours should be to stand up immediately, just as 

we are seeking to stand up the Iraqi people immediately today to 

face the problems that they are encountering in their country. 

What greater example than a remedy for the United States Congress to be able to endure in the face of a catastrophe—as the 

Chairman points out that we all pray will never happen, and we 

will work to make sure that it doesn’t, but we have to prepare for 

that possibility, and do so in a manner that any terrorist or any 

5

person seeking to bring down this government knows that our traditions will be buttressed by constitutional amendment ensuring a 

working government in a relatively short period of time. 

I further believe that especially for our country since September 

11th, where we saw such a patriotic outpouring of people and individuals who care deeply about this country, from the display of 

flags to the volunteer efforts that took place all around this country, that a great educational opportunity would be the same kind 

of dialogue and discussion that we had here in this committee. I 

don’t know that a constitutional amendment would pass, but I sincerely believe that we need the opportunity to bring this dialogue 

and debate back to our State legislators. 

I intend to introduce legislation myself, a constitutional amendment, and the Chairman points out this is not the committee of jurisdiction in which to do that. And it presents a quandary for us, 

because our bills are like ships passing in the night. The Chairman 

noted that there are two distinct efforts to address this problem, 

one outlined by the Commission, others, and supporters of the constitutional amendment; others as have been outlined in the bill 

that is before us today. Both are worthy proposals. I think both 

need an up-or-down vote. 

I intend to write the Speaker. I think that having sat in last 

week on what was an incredible historic moment where the four 

living Speakers talked about their speakership, talked about this 

great House, I think this is one of those moments in history that 

transcends the legislation before us and requires the kind of leadership that is going to recognize that what is more important than 

individual legislation or any one of us is that the democracy and 

our institution be able to stand up immediately. 

A constitutional amendment would provide that, and that is why 

I favor it, and that is why I, reluctantly and without prejudice, will 

vote against the proposal before us. I believe that we need to go 

forward on concurrent paths and there has to be implementing legislation, and the thoughtful measures that Mr. Sensenbrenner and 

Mr. Dreier and the principles on which they base their legislation 

ought to be incorporated in that. 

But my grave concern and fear is that we need to demonstrate 

to the entire world that no terrorist act can cripple this government. And we have three Members in this body, on this committee 

alone, who came here by special elections; none of them in a 45-

day period. Mr. Ehlers’, I think, selection took approximately 120 

or 102 days. Ms. Millender-McDonald came here in a special election as well that took in excess of 100 days. Mr. Brady’s election 

took 188 days. 

It is simply, while idealistic and an important matter to preserve, the daunting task that we face I believe requires us at least 

to have this debate and dialogue on the floor. And it is my hope 

that that will take place, though I fully acknowledge that that is 

a matter to come before another committee, not this. 

I thank the Chair who said to me that he would clearly indulge 

anything of this nature, but recognized that it would not come before this committee. And that is my sincere belief. 

I have extended remarks, Mr. Chairman, and some questions 

that I would like to ask, but at this time I would yield back to you. 

6

The CHAIRMAN. I want to thank the Ranking Member for his 

thoughtful comments. 

[The statement of Mr. Larson follows:]

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The CHAIRMAN. And we will go to other opening statements if we 

have them. Do we have other opening statement? 

I have one thing I do want to mention that the Ranking Member 

jogged in my mind that I was remiss in mentioning. We have a 

Sensenbrenner bill he has jurisdiction, and the Ranking Member 

has mentioned that. We are looking for ways to accommodate for 

the comfort level of the votes and would take into consideration 

what Congressman Larson stated. 

But, I need to point out that Representative Baird has been a 

tremendous individual in this entire process, even though I think 

from the constitutional amendment side it could take a long time 

for States to ratify. However, having said that, Representative 

Baird kept this on the front burner; he pushed the issue. There are 

also things that he has done both publicly and privately, frankly, 

through the traumas in the last couple of years, that have bettered 

everybody’s life on this campus. And so I would be remiss if I didn’t 

say that his bill is not without thought. Also, he has been a main 

motivator of keeping this issue on the front and keeping us working on it. 

With that, I would lay before the committee House Resolution 

2844 open to amendment. 

[The information follows:]

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The CHAIRMAN. And the Chair offers an amendment in the nature of a substitute. 

The CHAIRMAN. Is there any discussion on the substitute? 

Mr. LARSON. Mr. Chairman. 

The CHAIRMAN. Mr. Larson. 

Mr. LARSON. I don’t know how much of a debate you want to 

offer on this. I have some specific questions that I have with respect to this. And what I would like is to—if I could at this time 

go through some of the questions. And again, obviously, if staff can 

answer those questions, fine; if not, we are happy to submit them 

before the matter comes to the floor, if we could get a response. 

The CHAIRMAN. The Ranking Member can proceed. 

Mr. LARSON. Thank you. 

Mr. Chairman, a number of questions with respect to the provisions of H.R. 2844 for the Members, and possibly also for the staff, 

we feel are important before the matter comes to the floor. 

The first is with respect to pulling the trigger. The first question 

is how exactly would the trigger be pulled so that special elections 

could take place, and what would happen if the House lacked a 

Speaker at the time, which was a question that was raised during 

our hearing? 

The second question would be, how is the number of vacancies 

required to activate the process chosen? If the House can pass bills 

or motions with more than 100 Members absent under normal circumstances—which we did, by the way, four times Monday night, 

November 17—why would it somehow be illegitimate to do the 

same thing in time of catastrophe? 

With regard to the question of disability, would the legislation do 

anything to address the issues of Member disability which could 

threaten the presence of a quorum on the floor under certain conditions? Some have even questioned the concept of defining a 

quorum. 

What would happen if special elections already in progress to fill 

vacancies, preceding a catastrophe, resulted in reducing the number of vacancies below 100 before special elections triggered under 

the statutes would occur? Would the trigger, once pulled, be impossible to stop? 

The grounds for contested elections: Isn’t the bill an invitation to 

file election contests against the purported winners of such elections on a host of possible grounds presented through this legislation? 

The concern that we have heard repeatedly about absentee and 

military voters: How can military personnel and their families and 

other Americans living abroad possibly become aware of a special 

election request, request an absentee ballot, receive one once candidates become known, and return them in a time frame contemplated by the statute? Or does the bill simply assume that 

somehow everything will work out? 

Independent and other candidates on the ballot: Does the bill, by 

remaining silent about independent or nonmajority party candidates, assume that they could not run? Or does the bill assume 

that existing State laws could somehow cope within the 45-day 

total framework? What if they can’t? 

23

With regard to actions or not by political parties, how would political parties nominate candidates within the 10 days allowed? 

Would they be required to? What happens if they don’t or can’t? 

And with regard to post-election procedures, wouldn’t it take at 

least 60 days, or more in many cases, for the ultimate winners of 

the special elections to be known or finally certified? 

And, last, Federal court actions. Now, this is not our jurisdiction, 

but doesn’t the bill provide an unreasonably short time frame for 

litigation based on the Speaker’s announcement of a vacancy while 

inviting lengthy litigation brought on other grounds? 

And so, Mr. Chairman, those are concerns that we have with respect to the legislation as proposed, and we think in conversation 

with many offices of secretaries of States and knowing how this 

committee and so many Members in the Congress have grave concerns about unfunded State mandates and what we would be foisting upon the States, we think that these are questions that need 

to be answered and are problematic in going forward with this legislation. 

The CHAIRMAN. Thank you. Is that all the questions you have? 

Mr. LARSON. Yes. 

The CHAIRMAN. Do you have any more? 

Mr. LARSON. I do not have at this time have any more questions. 

My colleagues might, but I do not. 

The CHAIRMAN. And we are going to take a look at this, but I 

just want to comment on just a couple of items if I could. 

On the contested elections, I believe that we are going to have 

potentially contested elections with anything we do. I think we are 

going to have that possibility. As you are probably aware you and 

I are being sued in the Supreme Court for a contested election contest. It is by a candidate who thinks that this committee acted 

without merit, which is totally incorrect. But I do believe that in 

situations like this and with the trauma that would occur with 

whatever process you went with, you are going to have contested 

the election possibility, there is no question about that. When you 

have 100 seats running, in a certain time frame, you probably have 

the possibility of more contested elections that could occur. 

As far as the post-election procedures, I believe that there are a 

lot of set procedures in most States. I know our elections were held 

within 12 days, in the State of Ohio, with the recount or certification. And I think that is going to have to be looked at and also 

to be considered. So, with regard to direct questions, there are 

questions that have to be answered and need to be answered, and 

we will need to talk to the bill’s primary sponsor to get answers 

to these questions. But I did want to reflect right off the top. 

Mr. LARSON. Mr. Chairman, also in fairness to you and to the 

proponents, we also have further data that might help them. The 

goal here on our part is to better help the Members, better help 

the legislation as it proceeds. But these are, I think, very legitimate questions that need to be answered, and obviously we would 

like to have them before they go to the floor. 

The CHAIRMAN. And I think they are legitimate. Also, for example, another question that hasn’t been answered completely in my 

mind, to be frank, is the disability question. It is a question I had 

throughout the discussion. I asked that question previously. We 

24

have yet to get an answer about disability: Who determines disability, what is disability? Are you temporarily disabled? Is it permanent? 

So I also agree. So we will talk with the bill’s sponsor and get 

written answers to these and, by the way, any other questions you 

might have as this continues through the process. 

Ms. MILLENDER-MCDONALD. Mr. Chairman, again I thank you 

for holding this meeting, too, because this question has been raised 

many times after 9/11. And I too, as the Ranking Member has so 

admirably indicated, would love to come to an amicable agreement 

on this issue. But there are a lot of questions that are left unanswered, and this is a very delicate issue. 

One of the questions that come to mind for me is that we constantly talk about the Speaker. Now, we know when certain things 

happen, the Speaker is ushered on to an undisclosed area. But 

what if he does not have the opportunity to get there, will he or 

she have an opportunity to get to an undisclosed area for safety 

reasons? Is there anything that we can do in this bill to speak to 

the next person in authority, given that Speaker may not be the 

person who will be able to carry out the various sections of this 

bill? 

And the other question that I have is if the number of Members’ 

vacancies is less than 100, will the bill’s provisions still take effect 

regarding the timing for a special election? 

Those are some of the questions, along with the Ranking Member 

who spoke about the disabled, military personnel and others who 

are working overseas. We certainly have many times been concerned that they have been left out. So those are the questions that 

I have that will add to the ones that the Ranking Member has already very admirably outlined. 

The CHAIRMAN. We will also pass those on to the bill’s primary 

sponsor and make sure that we get written answers back, and any 

other questions that may generate off of those responses also to the 

members. 

Other members? Is there any further discussion? 

Mr. LARSON. Mr. Chairman, I would just like to—I know you 

usually say that I just wanted to seek unanimous consent to introduce the full text and questions that I raised during the course of 

the debate, and then ask that when a vote be taken, it be taken 

by roll. 

The CHAIRMAN. Roll call? Okay. The Chair lays before the committee House Resolution 2844, open to an amendment. 

And the Chair offers an amendment in the nature of a substitute. The question is on the amendment in the nature of a substitute. 

Those in favor of the amendment will say aye. 

Those opposed will say nay. 

And the Ranking Member has asked for a roll call. The clerk will 

call the roll. 

The CLERK. Mr. Ehlers. 

Mr. EHLERS. Yes. 

The CLERK. Mr. Mica. 

Mr. MICA. Aye. 

The CLERK. Mr. Linder. 

25

Mr. LINDER. Aye. 

The CLERK. Mr. Doolittle. 

[No response.] 

The CLERK. Mr. Reynolds. 

[No response.] 

The CLERK. Mr. Larson. 

Mr. LARSON. Nay. 

The CLERK. Ms. Millender-McDonald. 

Ms. MILLENDER-MCDONALD. No. 

The CLERK. Mr. Brady. 

Mr. BRADY. No. 

The CLERK. Chairman Ney. 

The CHAIRMAN. Aye. 

The results are 4 in favor, 3 against. The amendment is agreed 

to. 

The Chair recognizes Mr. Ehlers for the purpose of offering a motion. 

Mr. EHLERS. Mr. Chairman, I move that the committee order 

House Resolution 2844, as amended, reported favorably to the 

House of Representatives. 

The CHAIRMAN. The question is on the motion. 

Those in favor of the motion will say aye. 

Mr. LARSON. Mr. Chairman, could we have a recorded vote on 

that? 

Mr. LARSON. Mr. Chairman, I announce pursuant to the provisions of clause 2 of rule XI, it is my intention to seek not less than 

2 additional calendar days provided by the rule to prepare additional views to be filed with the committee report. 

The CHAIRMAN. Without objection. 

I ask unanimous consent that members have 7 legislative days 

for statements and material to be entered in the appropriate place 

in the record. 

Without objection, the material will be entered. 

[The information follows:] 

[COMMITTEE INSERT TO COME] 

The CHAIRMAN. I ask unanimous consent that staff be authorized 

to make technical and conforming changes on all matters considered by the committee at today’s meeting. 

Without objection, so ordered. 

And, having completed our business, I want to thank all the 

members today. And the committee is hereby adjourned. 

[Whereupon, at 3:51 p.m., the committee was adjourned.]

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