Activists fight plan to 'select' Congress

A nationwide network of grass-roots activists dedicated to defending liberty and restoring constitutional, limited government is urging Americans to use the Internet to fight a proposal they say would undermine the foundations of the electoral system established by the Founders.

"The clock is ticking. A well-orchestrated, well-financed campaign to quickly amend the Constitution is under way," warns Kent Snyder, executive director of the Liberty Committee, a group founded by Rep. Ron Paul, R-Texas. "A proposed constitutional amendment would take away your right to vote for your U.S. representative. We can't and won't stand by and let our republic be gutted by this amendment."

Rep. Ron Paul, R-Texas

The call comes in response to recommendations of a privately created panel, the Continuity of Government Commission, or COG, for a constitutional amendment allowing the appointment of individuals to the U.S. House of Representatives to fill the seats of dead or incapacitated members in the wake of a nuclear attack or other catastrophic event.

Funded by hefty grants from the Carnegie, Hewlett Packard and MacArthur foundations, the COG Commission was launched as a joint project of the American Enterprise Institute and Brookings Institution a year after the 9-11 terrorist attacks on the World Trade Center and the Pentagon. It was not overlooked that the fourth hijacked plane, Flight 93, which was forced down by its passengers in Pennsylvania, was likely on its way to the Capitol.

The 15-member panel headed by former Carter and Clinton adviser Lloyd Cutler and former GOP Sen. Alan Simpson of Wyoming boasts an array of politically connected pundits, politicos and bureaucrats. Many were in the Clinton administration, but not all. This is a bipartisan effort, and its ranks include former House speakers Newt Gingrich and Tom Foley; Clinton confidant Strobe Talbott; Clinton's Secretary of Health and Human Services Donna Shalala; George H. Bush Labor Secretary Lynn Martin; Clinton's chief-of-staff Leon Panetta; and Ken Duberstein, chief-of-staff under Reagan. AEI resident scholar Norman Ornstein and Brookings Fellow Thomas Mann are senior counselors.

The commission's first report, some 58 pages, was unveiled at a press conference, June 4, 2003. Titled "Preserving Our Institutions: The Continuity of Congress," its authors define a problem they say is without a solution in the Constitution as written: The 17th Amendment to the Constitution allows for state governors to appoint replacements for vacancies in the Senate, but House members must be elected. If there's a catastrophic disaster, like a nuclear attack, what then? Would Congress be able to be up and running quickly?

"The greatest hole in our constitutional system is the possibility of an attack that would kill or injure many members of Congress," the report declares. Such an attack against the Legislative branch would either prevent it from operating or cause it "to operate with such a small number that many people would question its legitimacy."

To make its case, a doomsday scenario is laid out in which most of Congress, the Supreme Court, incoming and outgoing presidents and Cabinet members are attending an Inauguration Day event in Washington, D.C., when terrorists strike nearby with a small nuclear device. The explosion would not only cause horrific damage and casualties, but if it killed most government officials and lawmakers – especially those named as presidential successors in the Constitution – the country would be thrown into chaos, with many surviving officials and military generals vying for power.

Assembling a complete Congress wouldn't be possible overnight, according to COG. While Senate vacancies could be filled by gubernatorial appointments within a day or two, rebuilding the 435-member House would take several months.

"In the interim, the House might be unable to meet its quorum requirement and be unable to conduct business. Since a catastrophic attack could prevent Congress from functioning or cause it to operate with a small, unrepresentative number, the [commission] finds the status quo unacceptable."

The solution: a constitutional amendment granting Congress the power to pass a law allowing the appointment of representatives, at least on a temporary basis, until elections could be held.

The report offers this wording as a guide for consideration: "Congress shall have the power to regulate by law the filling of vacancies that may occur in the House of Representatives and Senate in the event a substantial number of members are killed or incapacitated."

Proponents at the June 2003 press conference confidently predicted there would be no opposition to such an amendment and that following quick congressional approval (no later than Sept. 11, 2003), it would be ratified by the states within 14 to 18 months.

So far, they've been wrong. The proposal has drawn the fire of members of Congress who advocate constitutional government with checks and balances and separation of powers. They say there is no "hole" in the Constitution that needs patching. Special elections – which are constitutional – would be in order in a crisis and possible with modern communications and technology.

Rep. Paul of Texas denounces an amendment as "both unnecessary and dangerous."

"At its heart, the COG proposal is fundamentally at odds with the right of the people always to elect their members of the House of Representatives," he says. "The House must be elected. Even 'temporary' appointees would be unacceptable because the laws [they] passed would be permanent."

Rep. David Dreier, R-Calif., chairman of the House Rules Committee, views the proposal as "the constitutional equivalent of a computer virus or work," which over time "will eat away at other provisions of the Constitution, forcing the Framers' checks and balances to crash under the potential statutory fixes that such an amendment would allow."

'Psychobabble diagnosis'

Arkansas Democrat Vic Snyder [no relation to Kent Snyder] took a hard swing at the idea when it was floated in the pages of the Hill publication Roll Call by COG counselor Norman Ornstein less than two months after 9-11 and a year before the commission was formed.

In an open memo to House Speaker Dennis Hastert, R-Ill., and Minority Leader Richard Gephardt, D-Mo., Ornstein said the pair had not "stepped up to the plate" to "prevent our institutions from failing us" in the event of a catastrophic event, and he chastised House lawmakers for being in "a heavy state of denial"

A proposed amendment by Rep. Brian Baird, D-Wash., that would allow governors to appoint House members in an emergency was "exactly right on the mark," said Ornstein.

Rep. Snyder slammed Ornstein's appraisal of Congressional concern and ability as "an amazingly inaccurate statement" and denounced fellow-Democrat Baird's proposal.

"Is there any American in or out of Congress who is unaware that large numbers of people, including House members, could be killed in one violent tragedy?" Snyder demanded – and answered "Of course not."

"I oppose Baird's amendment because I believe it is a bad idea, not because I am afflicted by some psychobabble diagnosis of denial," he declared emphatically.

Constitutional solution

Rather than a constitutional amendment, the Liberty Committee – and its partner, the Liberty Caucus, comprised of members of Congress – support the "Continuity in Representation Act," H.R. 2844. It's a simple statute requiring states to hold special elections to fill large-scale vacancies no later than 45 days after the speaker of the House announces that "extraordinary circumstances" – defined as 100 or more vacancies in the House – exist. Candidates would be nominated to the ballot by the political parties recognized in various states.

Rep. James Sensenbrenner, R-Wisc.

Introduced by Rep. James Sensenbrenner, R-Wis., on July 24 – with co-sponsors House Rules Chairman Dreier, Rep. Candice Miller, R-Mich., and Paul – H.R. 2844 cleared the Judiciary Committee by an 18-10 vote Jan. 22.

Supporters hope it will be brought to the floor for debate and a vote this week, and it could be if the House leadership gives the green light.

"This legislation provides for a functioning House of Representatives and protects the people's right to elected representation even under the most tragic of circumstances," Sensenbrenner said upon introducing his bill. "Under this legislation, our republic will maintain its democratic character and the House will maintain its 'intimate sympathy with the people,' as James Madison wrote in the Federalist Papers, by remaining a body composed only of those members who are elected by the people."

The congressman took particular issue with the view held by the COG Commission that the Founders did not allow for emergencies.

"Congress has the clear authority to enact this legislation under Article 1, Section 4 of the Constitution, which states that 'the Congress may at any time by Law make or alter' State election laws," he declared in his statement. "Consistent with the right to chosen representation, the Founders explicitly considered Congress' power to require expedited special elections, the solution to potential discontinuity in government in emergency situations."

In fact, "the Constitution gives Congress, 'a right to interpose,' its special election rules on the states 'whenever extraordinary circumstances might render that interposition necessary to its safety,'" he added, quoting Alexander Hamilton.

Building opposition

Kent Snyder attended the June 4 press conference and from what he heard figured this was not just a trial balloon to test public reaction and receptiveness. The COG speakers were deadly serious and confident of success; their agenda was moving on fast forward.

They "were feeling just wonderful that there would be no opposition to this effort," Snyder told WorldNetDaily. "Plus there was a well-developed strategy to jam this down our throats quickly."

This would involve sending teams of scholars to various state legislatures, coast-to-coast, simultaneously to brief lawmakers on the issue and drive home the alleged need for fast ratification of the amendment within each state.

"They had a complete plan of action with an entire SWAT team, if you will, of people ready to move to get this passed quickly, and perhaps they still have," said Snyder.

Snyder recalled he and Paul decided the issue was serious and important enough that some kind of opposition within Congress had to be developed. On July 23, the Liberty Committee sponsored a special briefing session at the Library of Congress for staffers from both the House and the Senate, and over 70 attended. Besides Paul, speakers included Rep. Snyder and Charles Rice from Notre Dame Law School.

"That briefing session is where the line was drawn," said Snyder. "In terms of getting down to the nitty-gritty, that briefing was instrumental. Not only were staffers informed as to the dangers of an amendment – no matter how seemingly benign – a message was sent that there was real opposition."

The following day, Sensenbrenner introduced H.R. 2844 as an alternative to a constitutional amendment, with Paul and others quickly signing on.

Having spearheaded the way, the Liberty Committee hopes to mobilize the public into demanding House members support H.R. 2844, which could come to the floor this week. The committee's website features a special program enabling anyone, anywhere in the country to sign and send letters electronically to his or her representative.

"Our entire focus is on the legislative process, and everything we do is to advance the legislative remedy to a problem," said Snyder. "We give [people] information and ask them to participate in the legislative process."

"In this case, we're saying here is a constitutionally proper, practical solution to address the potential problems in the future without amending the constitution and – underscore this point – always electing House members, never appointing them," he said.

Earlier story:

Election by selection?