Election by selection?

A panel formed last year to devise plans to ensure the U.S. government survives a catastrophic attack has recommended altering the Constitution to allow for the appointment, rather than election, of members of Congress killed in such an assault, a plan that has been criticized as a danger to due process.

The Continuity of Government Commission, or COG, headed by former Carter and Clinton adviser Lloyd Cutler and former GOP Sen. Alan Simpson of Wyoming, made its recommendation in the panel’s first report entitled, “Preserving Our Institutions: The Continuity of Congress. Editor’s note: You must have Adobe Acrobat to open this file.

“The greatest hole in our constitutional system is the possibility of an attack that would kill or injure many members of Congress,” said the report. A large and deadly attack against the Legislative branch could either prevent it from operating or, the report says, cause it “to operate with such a small number that many people would question its legitimacy.”

As its example, the panel created a scenario 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.

Such an explosion would not only cause horrific damage and casualties, but if it were to kill most government officials and lawmakers – especially those named as presidential successors in the Constitution – the country could be thrown into chaos, with many surviving officials or generals trying to claim power.

Worse, the panel said, reconstituting a complete Congress would not be quick or easy. While state governors can make temporary appointments to the Senate, the House can only fill vacancies by special election, which could take up to four months.

“In the interim,” the report says, “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.”

To fix the problem, the panel recommended a constitutional amendment that would “give Congress the power to provide by legislation the appointment of temporary replacements to fill vacant seats” in the House “after a catastrophic attack” and in the House and Senate to temporarily fill seats “held by incapacitated members.”

According to the report, appointed House members should hold that office for the time it takes to hold a special election to properly fill the seat, “within 120 days of the vacancy.”

“The 120-day window allows states to have primaries if they choose,” the report says, “but it emphasizes the importance of placing an elected member in the seat with dispatch.”

In the case of elected House members who are merely incapacitated by an event, the temporary appointment should last as long as the incapacitation lasts, the member dies, a special election is held or until the term of office expires.

The commission also recommends that appointed members be allowed to run for the office during the next election cycle.

The panel plans to issue subsequent reports on the continuity of the presidency and the courts, or the executive and judicial branches of government.

But the COG’s congressional recommendation is being opposed by a newly formed group calling itself the Committee to Preserve an Elected Congress, or CPEC.

Headed by longtime conservative activist, author and syndicated columnist Phyllis Schlafly, the opposition group was formed “to combat the surprising attempt by men who should know better to change the U.S. House of Representatives from an elective to an appointive body in the event of a national emergency,” said a statement.

Schlafly said those behind the COG’s recommendation should know “that the direct election of Members of the House accountable to ‘we the people’ is the centerpiece of the American constitutional system and has been a major factor in preserving our American liberties.”

According to CPEC member and constitutional authority professor Charles Rice, the plan to change the U.S. Constitution is “a solution in search of a problem that does not exist.”

And, says CPEC member Howard Phillips, “The fear of terrorism should not be used to scare Americans into surrendering our liberties.”

Schlafly said her organization believes “we should adhere to the Constitution itself and make use of the rules changes passed by the House … as well as expedited procedures for filling vacancies passed by state legislatures.”

The House has proposed, through House Concurrent Resolution 190, the creation of a joint committee that would establish rules to “facilitate and ensure congressional continuity of operations.”

Reps. David Dreier, R-Calif., and Martin Frost, D-Texas, have sponsored the joint committee proposal, which creates a panel of 20 members, equally divided by chamber and party. The House speaker and the Senate majority leader would appoint the co-chairmen of the joint committee, as well as the other members, after consultation with the respective minority leaders. The joint committee is to issue an interim report by January 31, 2004, and a final report by May 31, 2004.

“It is vitally important for the general welfare of our nation that the House and Senate can work together in an effective manner during times of catastrophe, when even the existence of the national government may be at stake. H. Con. Res. 190 is an important step toward achieving that goal,” Dreier, chairman of the House Rules Committee, told the panel in testimony June 4.

“While the power of the presidency has been transferred in critical situations on numerous occasions – ranging from war to assassination to impeachment – only two or three times in our nation’s history have crises tested the ability of Congress to assemble and conduct its business under extreme circumstances,” he said. “The fact is we are still unsure of our ability to act decisively to maintain homeland security while preserving the democratic and representative fabric of our society.”

Dreier also warned against accepting the COG’s recommendation too quickly.

“… Let me caution those who favor a quick passage of a constitutional amendment on quorums and the replacement of members,” he said. “As I have discussed with Mr. Robert Michel, our former House Republican leader and a current member of the Continuity of Government Commission, a constitutional amendment should be a last resort.”

Such an amendment “would be premature until Congress determines that there are no other ways to resolve these issues through procedures, rules, joint rules or public laws.” Also, he said amending the Constitution is a process that typically takes “years” – time the U.S. may not have before disaster strikes.

The COG report, however, recommends passing the amendment “expeditiously,” within two years. It also says merely changing congressional rules isn’t adequate because the commission doesn’t believe that process is constitutional.

“First, the Constitution is very clear that there is only one method for filling vacancies in the House of Representatives – by special election,” the report says. And “while it is true” that courts grant “great deference to the House and Senate in the rules they adopt to govern themselves, they have also been clear about the limits of such governance.”

The commission noted that a federal court, in U.S. v. Ballin, “‘may not, by its own rules, ignore constitutional restraints or violate fundamental rights. …'”

Frost, in a published statement regarding the formation of a committee to examine the issue, pushed for bipartisanship in any decision lawmakers eventually reach. But he did not say whether he supported or opposed the COG recommendation.

“I would like to add that this is not a partisan issue,” said Frost. “This is an issue that affects each and every American and should be handled in a serious way, a way that avoids partisan rancor.”

“The fact is there are no easy answers because we are talking about the possibility of an event that the founding fathers could never have imagined. They created the House of Representatives as the arm of the government that is closest to the people; and in doing so, they provided for direct election,” said Frost.

“To change that is an undoing of over 200 years of history and precedent and to do so requires careful and thoughtful discussion and deliberation.”