12 September 2003
Ensuring the Continuity of Congress in a Time of Emergency
Senator John Cornyn evaluates alternative proposals
(This column by Senator John Cornyn, Texas Republican, who is
chairman of the Senate subcommittee on the Constitution, Civil
Rights and Property Rights, was published in the Washington Times
September 12 and is in the public domain. No republication restrictions.)
Continuity of Congress
By John Cornyn
Two days after September 11, Congress approved legislation expediting
benefits for public safety officers killed or injured in the line
of duty that day. Three days after September 11, Congress appropriated
$40 billion in emergency funds for recovery from and response to
the attacks, as well as legislation authorizing the use of military
force. A week later, Congress approved additional legislation to
stabilize and secure our economy and our airports, and to provide
compensation for the victims of the September 11 attacks. And in
subsequent weeks, Congress enacted several other bills and appropriations
measures to bolster national security and upgrade our capabilities
to combat terrorism.
Yet two years later, Congress has failed to establish one vital
protection: Ensuring that the important institutions of our government
will continue to operate on behalf of the American people should
another attack occur.
In order to address this gap in our national security, I chaired
the first in a series of congressional hearings Tuesday. The overwhelming
conclusion of this first hearing was that our current laws are
woefully inadequate, because they fail to guarantee continuity
Under our Constitution, Congress cannot act without a majority
of its members present. There is good reason for such a provision,
as one Constitutional Convention delegate urged, in this extended
country, embracing so great a diversity of interests, it would
be dangerous to the distant parts to allow a small number of members
of the two houses to make laws.
This commitment to federalism and national representation has
a cost, however: The same requirement also empowers terrorists
to shut down the Congress by killing or incapacitating a sufficient
number of representatives or senators.
The problem is that states may empower their governors to appoint
senators in cases of vacancies, and 48 states have done so, but
the Constitution provides no immediate mechanism for filling vacancies
in the House, nor for redressing incapacitated members in either
the House or the Senate.
For example, if 50 senators were in the hospital and unable either
to perform their duties or resign, they could not be replaced.
The Senate could be unable to operate for up to four years.
The Continuity of Government Commission, a bipartisan panel of
former congressional leaders and government officials across the
political spectrum, has unanimously endorsed a constitutional amendment
to provide for emergency interim appointments, in cases of catastrophic
attack, until special elections can be held. Just as the 25th Amendment
ensures continuity of the presidency, the proposed amendment would
ensure continued congressional operations. Indeed, some members
of Congress have already introduced their own constitutional amendment
proposals, joined by a bipartisan coalition of more than 80 co-sponsors.
Alternatively, a group of U.S. representatives, including some
prominent Republican House members, have introduced a statutory
proposal to require expedited special elections in cases of emergency.
Parties would have two weeks to nominate candidates, and the election
would occur seven days later.
I'm open to any proposal that gets the job done, and I respect
the sincere desires of many House members to preserve, to the maximum
extent possible, the tradition that every member of the House is
I am concerned, however, that expedited special elections either
take too long to conduct to ensure adequate continuity, or will
sacrifice too many other important principles, such as meaningful
elections and voting rights in the process. It is one thing to
plan for an election that has been scheduled months or even years
in advance. It is quite another to conduct an election from a standing
At the hearing, we heard expert testimony that special elections
take months to conduct. It takes time to qualify the candidates,
hire poll workers, prepare voter rolls and voting machines, and
reserve polling locations. Then there's election results verification
and qualification of winners.
I am also deeply concerned with testimony that such expedited
elections would effectively disenfranchise military and other absentee
voters. Americans who put their lives at stake to protect democracy
against threats abroad have every right to participate in democracy
at home. It would be impossible to send and receive absentee ballots
to our troops overseas under such limited time constraints. Also,
giving voters and candidates just seven days to debate issues and
examine qualifications also presents serious concerns of democratic
Notably, state and local election officials who have explained
their views to us unanimously expressed concerns with conducting
elections in such a dramatically shortened timeframe.
This week's hearing was, I hope, just the first step in a longer
process of ensuring that our more than 200-year experiment in self-government
will never perish from this earth. We must begin the process of
sending the message to terrorists that there is nothing they can
do to stop the American government from securing freedom here and
around the globe. Nobody likes planning for their own demise, but
two years is too long to wait. The time to plan for the unthinkable
(Sen. Cornyn will co-chair a hearing on Tuesday with Sen. Trent
Lott to review the presidential succession statute.)