[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
HEARING ON E-CONGRESS--USING TECHNOLOGY TO CONDUCT CONGRESSIONAL
OPERATIONS IN EMERGENCY SITUATIONS
======================================================================
HEARING
before the
COMMITTEE ON HOUSE ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
Hearing Held in Washington, DC, May 1, 2002
Printed for the Use of the Committee on House Administration
U. S. GOVERNMENT PRINTING OFFIC
80-007 WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON HOUSE ADMINISTRATION
BOB NEY, Ohio, Chairman
VERNON J. EHLERS, Michigan STENY H. HOYER, Maryland
JOHN L. MICA, Florida Ranking Minority Member
JOHN LINDER, Georgia CHAKA FATTAH, Pennsylvania
JOHN T. DOOLITTLE, California JIM DAVIS, Florida
THOMAS M. REYNOLDS, New York
Paul Vinovich, Staff Director
Bill Cable, Minority Staff Director
E-CONGRESS--USING TECHNOLOGY TO CONDUCT CONGRESSIONAL OPERATIONS IN
EMERGENCY SITUATIONS
----------
WEDNESDAY, MAY 1, 2002
House of Representatives,
Committee on House Administration,
Washington, DC.
The committee met, pursuant to call, at 10:05 a.m., in Room
1310, Longworth House Office Building, Hon. Robert W. Ney
[chairman of the committee] presiding.
Present: Representatives Ney, Linder, Doolittle, Hoyer, and
Fattah.
Staff Present: Paul Vinovich, Counsel; Jeff Janas,
Professional Staff Member; Reynold Schweickhardt, Technical
Director; Channing Nuss, Deputy Staff Director; Melissa McKay,
Clerk; Greg Orlando, Legislative Assistant to Mr. Doolittle;
Bill McBride, Chief of Staff to Mr. Ehlers; Kim Herb,
Legislative Assistant to Mr. Linder; Bill Cable, Minority Staff
Director; Matt Pinkus, Minority Professional Staff Member; and
Sterling Spriggs, Minority Professional Staff Member.
The Chairman. The committee will come to order. I want to
welcome the chairman of the Rules Committee Mr. Dreier, and
also Congressman Langevin is now also arriving.
Today the Committee on House Administration is holding a
hearing on the concept of e-Congress and how the technology can
be used to conduct congressional operations during emergency
situations. You also have to bear with us. You are going to
hear some maybe squeaks and different things in the microphone
system. We have a guest we will be introducing on one of the
panels who is in Prague right now, and we will be getting to
him on the next panel.
I just want to say a couple brief statements. I want to
thank the members of the committee for coming today. The
terrorist attacks of last fall forced our country and this
institution to reexamine and reconsider long-held assumptions
about how we are going to live, work, and conduct business here
on the Hill. Unfortunately today all you have to do is say
September the 11th, and a whole series of emotions and thoughts
come to our minds. The horrific attack and the anthrax attacks
that were directed at this Congress made it clear the necessity
for developing plans for the Congress to operate in the event
of a catastrophic situation that either destroyed or made
uninhabitable the buildings we use to conduct our business.
We know Congress has been and will continue to be a target
for terrorist threats and actions. Today we are, as many
Americans have been, thinking about the need to do business
potentially differently as a result of those tragic events.
I look forward to hearing from our House colleagues today
and the experts on the second panel to get their thoughts and
insights. We do have to take care to make certain that whatever
actions we take in response to our new realities do not
compromise the integrity of this institution or the fundamental
principles that have made our country the longest-surviving
democracy in the world.
Today we are here to talk about how technology can help the
Congress operate in the event of an emergency. This committee
is charged with ensuring that the essential infrastructure of
Congress continues under any circumstances. This sounds simple,
and when everything is going well, it largely goes unnoticed,
but it involves tremendous effort, planning, coordination,
staff, computers, phones, communications, voting procedures,
physical space, security, access to external/internal
information, services, and the list goes on and on. This
committee learned this well when we moved thousands of the
police off site as our Capitol was attacked with a biological
weapon.
The recent discussion of the congressional session in New
York will, if it becomes a reality, pose new but in some cases
similar logistical problems. Under normal circumstances the
task of keeping this Congress functional is a heavy burden.
Under emergency circumstances the task can seem almost
insurmountable. But with proper effort, resources and planning,
the solutions are almost always close at hand.
As we convene this hearing, I do want to make something
clear: This institution has a history extending over 200 years
that is based on face-to-face deliberation. That should be
preserved. But I also believe the purpose of this hearing is to
discuss options that could happen in unusual situations.
Without objection, I have other statements for the record.]
[The information follows:]
While this hearing will focus on the feasibility and
ramifications of using technology to conduct our operations, we
are today only considering proposals that will be implemented
under extreme emergencies not utilized, for day to day
operations.
In the aftermath of September the eleventh and the anthrax
attack, this committee focused its attention on taking
immediate steps to ensure the safety of Members and staff,
improved our communication capabilities, and took steps to
ensure that House operations can continue under any
circumstances. Many of the procedures that have been put in
place since last fall are of a sensitive nature and cannot be
discussed in a forum like this, but many are widely known and
can be recounted. We have distributed Blackberries to members
and staff, almost 1800 in the House today. We have secured our
computer network, and are working to establish redundant
capabilities that will function if our existing system is
destroyed or inaccessible. We have off site office space for
Members to relocate in the event of a limited problem. We have
planned for the possibility of having Congress meet elsewhere,
if the Capitol becomes unavailable. We have enhanced our
emergency communications capabilities. We have taken simple,
but important tasks like making certain the alarm systems are
operable and each office has an evacuation plan. Just this
morning, Mr. Hoyer and I announced the distribution of
emergency communication phone cards to members. Members of this
committee, their staffs, and employees of the House have done
an outstanding job in implementing these changes.
Today, we need to begin contemplating additional changes in
a very thoughtful manner. We are fortunate to have two
distinguished members Mr. Drier, Chairman of the Committee on
Rules, and Mr. Langevin who introduced legislation to direct
the National Science Foundation to study the feasibility of
convening an E-Congress, with us to testify. These two
gentlemen will serve as our first panel.
Our second panel we have four distinguished experts from a
variety of disciplines that will help us understand the issues
we need to contemplate. I will introduce them before they begin
but for now I will yield to others Members of the Committee who
wish to make an opening statement.
The Chairman. I also want to thank the Members for coming
to the hearing.
Mr. Hoyer.
Mr. Hoyer. Thank you very much, Mr. Chairman. I want to
thank you for convening this very, very important hearing. A
year ago today the vast majority of Americans, including many
of us on this dais, would have regarded the creation of virtual
or electronic Congress in the event of a national emergency as
an interesting, perhaps academic, discussion, a story line
produced by an overactive Hollywood imagination, perhaps, but
not something that was seriously of concern to us. Most of us,
I believe, regard doomsday scenarios with a certain level of
detachment or denial, but we all know that in the wake of the
unconscionable terrorist attacks on September 11th and the
subsequent anthrax attacks on this Capitol complex, we cannot
afford to live in comfortable complacency.
Let me note that just yesterday I visited Ground Zero.
Representative Istook and I went up to congratulate those in
the Secret Service and in Customs who played such an
extraordinary role on that day. Seeing it on television--and
most Members of Congress have visited Ground Zero--it has now
gone from having been a rubble pile of seven stories high to a
hole six stories deep. But it is a humbling experience to stand
there, and it is also an experience that gives you the
responsibility, I think, and the concept of the responsibility
we have to not only preclude as much as we can the risk of that
happening again, but also to be prepared for the contingency.
It convinces me that our duty and common sense dictate that we
be prepared for the unthinkable.
I know I don't need to remind those of you here that the
heroism and courage of many strangers in the skies above the
Pennsylvania countryside on September 11th, we ourselves might
be meeting in a very different circumstance. Thus I know we
will approach the matter with the seriousness it deserves.
I want to compliment my colleagues and good friends from
Rhode Island and from California, particularly the gentleman
from Rhode Island for his thoughtful contribution to this
debate, and specifically for his introduction of H.R. 3481, the
Ensuring Congressional Security and Continuity Act. This
legislation would require the National Institute of Standards
and Technology to investigate and report to Congress on the
feasibility and cost of two issues; first, implementing a
secure system for remote voting and communication for Members
of the Congress if circumstances require the Congress to
convene without being in a single location. Again, prior to
that day in September, probably that would have been perceived
as a scenario not worth spending a lot of time on, and that is
not now the case.
Secondly, it would establish a system to ensure business
continuity in circumstances where Members of Congress and their
staff cannot access their offices in Washington, D.C. Again,
prior to September 11th I think there would have been few, if
any, would have thought that that was a reasonable possibility.
On the morning of September 11th as we left our offices, and as
most of us could not contact either our offices or our
dispersed staff, cell phones weren't working--we now have
Blackberries, which are in response to that--but we had found
that this becomes a very real possibility and something that we
need to plan for.
It is noteworthy that this legislation does not use the
phrase ``national emergency,'' but I think that is the clear
implication, Mr. Langevin, of your bill.
I am particularly interested in hearing the views of our
witnesses on the technical and financial feasibility of this
and other proposals. I am mindful of the constitutional
questions provoked by your bill, Congressman Langevin, and
other proposals that have been made and specifically look
forward to hearing our witnesses' views on how this legislation
and other proposals might affect the institution's ability to
assemble, act together and deliberate.
I again want to welcome the chairman of the Rules
Committee, Mr. Dreier, who has been through the years in the
Minority and in the Majority a very thoughtful contributor to
how this organization, the House of Representatives, the
People's House, can be more effective and more efficient both
in good times and in bad.
And so we thank them both for their presence.
I thank you again, Mr. Chairman, for holding this hearing.
The Chairman. Thank you, Mr. Hoyer.
Mr. Linder.
Mr. Linder. I, too, am grateful for your holding these
hearings. I am a member of the Rules Committee, and the issues
that come out of this hearing and changes that we might make
will wind up before the Rules Committee in terms of technology.
Let me just say that the Great Seal of the United States
contains a motto, E Pluribus Unum: Out of Many, One. The House
of Representatives embodies this motto. Members representing
many States and even more interests come together in these
buildings and halls to share their unique interests and
insights. The resulting exchange of ideas undoubtedly impacts
legislative decisions as we must combine our unique individual
views to declare a single policy in the best interest of our
Nation.
The floor of the House is not solely a place to cast votes.
As we stand in that Chamber flanked by the relief portraits of
the great lawgivers, we educate, we cajole, we convince, we
listen. These are necessary components of our legislative
duties. They are firmly rooted in the Founding Fathers' intent
when establishing a legislative body elected by and
representative of the people of this Nation. I fear that by
instituting provisions allowing Congress to forego these
responsibilities, we will do an injustice to the legislative
process and thus to the American people.
I will say honestly I am familiar with proposals to explore
or institute remote voting procedures. In fact, the Rules
Committee has held hearings on this very issue in the past. Our
findings on this issue have never been very favorable as we
have found that the convenience offered by modern technology
hardly offsets the loss in the quality of the deliberative
process. However, the events of September 11th and the
subsequent anthrax attacks are forcing us to reexamine this
issue.
While I believe that 200-plus years of history and
precedent cannot be forsaken in the name of convenience or
efficiency, I recognize that it may be worth exploring how, in
the event of emergency, technology can facilitate the
continuation of the work of the people.
Alexander Hamilton said in Federalist Number 22, ``In those
emergencies of a Nation in which the goodness or badness,
weakness or strength, of its government is of greatest
importance, there is commonly a necessity for action. The
public business must in some way or other go forward.''.
Nonetheless, I continue to believe that the role of
technology should continue to be one of facilitation, namely in
communication and the exchange of information, rather than one
of substitution. Our work collectively as elected
representatives of the people necessarily entails dialogue and
interaction between Members. In the worst of crises, I believe
we will relish the opportunity to reach out to our colleagues
and fellow citizens to share our thoughts and experience, and
technology may play a role in that. However, I believe that we
must also convey that a legislative assembly should not be
deterred from assembling. I believe it is our responsibility to
ensure that this message is heard. Thank you.
The Chairman. Thank you.
Mr. Fattah.
Mr. Fattah. Mr. Chairman, let me share in the remarks of my
colleagues who have already spoken. I think it represents the
range of views and twists and turns in this subject matter. I
look forward to the testimony. I do have a conflict to which I
have to run out, but I will be back, and I will read each of
the testimonies when I return. Thank you.
The Chairman. Appreciate it. Thank you.
Mr. Doolittle.
Mr. Doolittle. I have no statement, Mr. Chairman.
The Chairman. With that we will begin. Appreciate both of
our colleagues.
Mr. Dreier.
Mr. Dreier. Thank you, Mr. Chairman, and Mr. Hoyer, and Mr.
Fattah, and Mr. Linder, Mr. Doolittle. Thank you very much for
holding this hearing. I would like to begin by also associating
myself with the very fine remarks that all of you have made on
this issue recounting what we experienced on September 11th and
the aftermath and the great responsibility that we have in the
wake of that tragedy.
I want to compliment Mr. Langevin for the legislation that
he has introduced, and I appreciate the fact that he is
spending time thinking about this issue and trying to put
together a way in which we can respond to the possibility of
another tragedy.
I want to say that I was very proud 7 years ago to be the
first person to preside over a fully interoperative committee
hearing of the Congress. We had a Rules subcommittee hearing
where we had questions coming in of our witnesses from e-mail,
along with having one of our panel members, one of our
committee members by teleconference. We had, of course, C-SPAN
covering it. So we had the wide range of technological
advantages 7 years ago utilized for that hearing.
I am also very proud to have worked with a lot of our
colleagues, as Mr. Hoyer mentioned, in the past to make sure
that we bring the United States Congress into the 21st century
technologically. And I think that that is something we need to
do to make sure that this institution is able--and we deal in
the marketplace today--to be out there and to be able to
provide information to the people whom we are honored to
represent and to others who have an interest in what goes on
here.
And so it is with that as a background that I say that I
believe that what Mr. Hoyer said about duty and common sense is
very important for us to pursue, and that is why I believe that
as you look at this legislation, it is very important to not
only pursue the technical side of this, the technological
changes and all that are so important, but I think in many ways
more important, and based on, with Steny having just yesterday
been at Ground Zero, and most of the rest of us have had the
opportunity to be there, I mean, standing there clearly
underscores for all of us the grave responsibility that we
have.
And so that is why as you look at this legislation and we
think of that inspired document that James Madison put
together, the U.S. Constitution, with the separation of powers,
it seems to me that we need to look at this issue by focusing
on both the institutional and the constitutional framework of
this. And that is why, I guess, my one message would be think
about what it is that the Framers had in mind.
Now, you, Mr. Chairman, mentioned the fact that we have
face to face interaction here. That happens to be one of the
most important aspects of this institution. We are the People's
House; 435 Members, all of whom have been elected. We are the
only--Federal officials who have to attain office through
election. We all know that. And so as Members of the People's
House, I believe that it is important for us to make sure that
we do meet and spend time thinking about these issues and
anguish over them and do it together.
And so, yes, there are logistical challenges that we face.
If the U.S. Capitol had been blown up on September 11th, we
obviously would have dealt with the question of how we meet.
But if the transportation system in this country had still been
in existence, we could put into place a structure, and you and
I discussed this the other day, Mr. Chairman, where Members of
Congress could, in fact, meet at a separate site.
So I think that what we need to do is to realize that that
is the greatest deliberative body known to man, and it is very,
very important that we utilize that in the best way possible as
envisioned by the Framers. And so I guess that, again, that
that message is one of go slow. Think long and hard before we
make any kinds of changes in the way we do business around here
when it comes to in any way undermining our deliberative
opportunities and responsibilities.
It is going to be a challenge. I look forward to working
with all of you on this. As Mr. Linder said, he serves on the
Rules Committee, we will clearly be working with this issue
there. And again, I appreciate Mr. Langevin's work.
I have an absolutely brilliant statement that has been
prepared that I would like that you submit for the record, and
I sort of stumbled through a few of the points that have been
in it. And I hope very much, Mr. Chairman, that you will excuse
me because I have to take off for another meeting. So thank you
very much again for your fine work, and I hope very much you
will heed my message.
The Chairman. Certainly appreciate your testimony. Thank
you.
Statement of Hon. David Dreier
Thank you, Mr. Chairman, for inviting me to testify on the
legislation introduced by our colleague, Jim Langevin, calling for a
study of the feasibility of implementing a secure computer system for
remote voting and communication for the Congress.
Since 1996, the Rules Committee has been studying the impact of
technology on the legislative process, and we have worked closely with
you and your committee to bring about a number of changes in the rules
of the House to facilitate the use of technology without undermining
the deliberative nature of the institution.* The Rules Committee has
actually had several hearings and meetings over the past six years
which examined the feasibility of remote voting in varying
circumstances and, I must admit, the discussions were not favorable.
The events of September 11 and the following anthrax scare made it
clear that we as a country are no longer beyond the reach of those who
mean us harm, and forced upon us the recognition that fears heretofore
unknown must now be acknowledged. Agencies from the federal government
down to the local level are now faced with developing contingency plans
on matters ranging from airline security to postal service operations.
Congressman Langevin's legislation, H.R. 3481, proposes to deal
with one of the most critical contingency plans we might face--the
continuity of Congress in case of a crippling attack on its facilities
or the nation's transportation network.
Various futurists and even some of our tech savvy colleagues have
long supported the idea of a ``virtual Congress'' where Members could
attend committee hearings, even vote, without being physically present
in Washington, D.C. In the recent past, we have closed the door on even
limited trials of such applications, such as requests to allow for
remote committee attendance during family illness or emergency for the
simple reason that this would invariably lead to pressures to widen the
circumstances under which such requests are accepted.
Following 9/11 and the shutdown of congressional office buildings
during the anthrax contamination, the clamoring for the adoption of
virtual Congress technologies has been heard more regularly, and given
more credence than ever before.
H.R. 3481, for example, seeks to address these concerns by calling
for a study into the possibility of ``implementing a secure computer
system for remote voting and communication for the Congress and
establishing a system to ensure business continuity for congressional
operations.'' A study, limited and tailored to very narrow
circumstances, and left at that, is probably worthwhile. However, the
study proposed by H.R. 3481 is not limited, and we must be extremely
wary of considering any recommendations that arise from a study due to
the increasing pressures it will bring, both internally and externally,
to apply them to regular House activities.
Congress is an inherently human institution. As such, the study of
any disaster-related contingency planning must go beyond the purely
technical and include an institutional and constitutional framework as
its basis. Therefore, I would recommend having the Library of Congress
do the study instead of the National Institute of Standards and
Technology.
Over the recent past, Congress has been unrivaled as an institution
in applying technology to provide the public with access to Members and
real-time legislative information such as committee hearings, floor
activities, and roll call votes. At the same time, however, we have
been purposefully hesitant to apply new technologies to the primary
legislative and deliberative responsibilities of the institution for
fear of undermining or even destroying the key component upon which
Congress is based and functions--the personal, face-to-face
interactions between and among its Members as they seek to deliberate,
debate and reach consensus on any number of issues.
No technology, no matter the clarity of the speakerphone or the
resolution of the video display, can provide for the essential human
atmosphere required to develop the interpersonal, collegial
relationships that are at the heart of the institution.
As Claremont McKenna College professor Joseph Bessette noted in The
Mild Voice of Reason, the ``deliberative process involves three
essential elements: information, argument, and persuasion.'' Thanks to
the vision and commitment of this committee, we have successfully, and
aptly, applied technology to enhance the sharing of information for
both internal and external purposes. Technology has even been used at
the basic level as a tool for argument and persuasion. However, no
technology exists that can fully reproduce the engagement and emotion
that occurs during the face-to-face, in-person bargaining, and the
sharing of ideas and passions.
Failure to take this into consideration when looking to apply
various technologies to the operation of Congress as a deliberative
body can have a serious, even fatal, impact on its ability to function
as conceived by our Founding Fathers. Put simply, the increasing
substitute of an electronic environment for that of the Congress as we
have long known it would inevitably lead, step by step, to the
questioning of the very relevance of the institution.
The fact that technology can be used for various applications
certainly does not mean that it should. That corporate boards may
permit meetings or voting via video conference or that college students
may take classes over the Internet does not mean that these same
technologies can be successfully adopted for use by Congress. The
structure of Congress varies widely from the more interpersonal
military or corporate world where action below is taken based on orders
from on high and where technology is easily applied as an effective
method of communication, information sharing, and command and control.
Considering the desirability or feasibility of remote voting,
communications and other technologies in any but the most extreme,
narrowly-defined, instances would lead to increased pressure to
establish and then build such a system. Even the physical destruction
of the Capitol, as horrible as that would be, would not be a
justification for remote voting because, absent the simultaneous
disruption of the nation's transportation system, the Members who make
up the Congress could still meet in one location.
Congress has refined from applying various technologies to its
inherently deliberative functions not for reasons of technophobia or
nostalgia, but in consideration and acknowledgment of the human
foundation of the institution. We must be extremely cautious and wary
of taking any steps that may open the door to forces that, no matter
their intentions, lead to a path that runs counter to the carefully
conceived plans and purposes of our Founding Fathers when they designed
Congress.
The Chairman. We will move on now to Mr. Langevin.
STATEMENT OF HON. JAMES R. LANGEVIN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF RHODE ISLAND
Mr. Langevin. Morning, Mr. Chairman and Ranking Member
Hoyer, members of the committee. I would like to thank you,
first of all, for allowing me to testify here today. Before I
begin my formal statement, I just wanted to say how
appreciative I have been, Mr. Chairman, of your guidance and
your leadership on this issue from day one. It has taken no
convincing on your part to realize how important this issue is.
You have shown, as the Ranking Member Hoyer and this committee
have shown, strong leadership in responding quickly to the new
demands of post-September 11th.
Mr. Hoyer. Mr. Chairman, if I might, before Mr. Langevin
gives us his formal testimony, I want to really thank him. I
mentioned him, obviously, in my opening statement, but Mr.
Langevin, as all of us know, was a member of the State
legislature, then elected statewide in Rhode Island as the
secretary of state, so he brings a wealth of experience in
dealing with these issues. He has been extraordinarily helpful,
Mr. Chairman, to us on election reform, bringing the knowledge
he had from his secretary of state's position in Rhode Island,
but also on this issue he has obviously given a lot of thought
to government and its structure and its operation.
And, Jim, we really do appreciate all the work you have
done on this and look forward to your testimony.
Mr. Langevin. Thank you, Mr. Hoyer. I appreciate your
comments.
I also would like to mention how much I have appreciated
consulting with both you, Chairman, and Mr. Hoyer on this issue
as well as Representative Cox and Representative Baird, who
also are supportive of this proposal.
But again, thank you, Chairman Ney and Ranking Member
Hoyer, for holding today's hearing on E-Congress. It is no
secret that I have been promoting this idea for months now. My
bill, the Ensuring Congressional Security and Continuity Act,
H.R. 3481, is just a first step. Today's hearing takes the next
step by examining the numerous issues involved in planning for
the unthinkable. I commend you again for your efforts.
First let me be very clear that my E-Congress idea in this
entire discussion today is about preparing for an emergency
situation in which Congress could not meet in the Capitol or
any of these building due to some future attack or natural
disaster. I do not want this to substitute for the traditional
face-to-face interactions that are vital to our day-to-day
work.
September 11th and the subsequent anthrax attacks on our
congressional offices exposed just how vulnerable we are,
particularly because we are centrally located. In fact, had the
Pennsylvania flight taken off on time and headed straight for
the Capitol, and had the Capitol not been already evacuated, we
would have been casting our Journal vote at the very same time.
I am not alone in any concerns for the unthinkable. Four
years ago Speaker Gingrich and President Clinton made an
historic commitment to analyze our current terrorism threat
both here and abroad, to develop concrete recommendations to
stem the tide of American hatred that has swept over specific
regions of the world, and to ensure this country remain not
only safe, but that our freedom and democracy would not be
shackled by fear or danger.
The Hart-Rudman report was the result of this visionary
pledge. This report concluded that America will become
increasingly vulnerable to hostile attack on our homeland, and
our military superiority will not always protect us. States and
individuals will likely acquire weapons of mass destruction,
and Americans will likely die on American soil. We can no
longer ignore these warnings.
E-Congress is a powerful option to ensure we are prepared
for terrorism or any disaster, but it is not the only option. I
note that some Members would not want to vote electronically or
may not be familiar with the Internet. However, today's hearing
and my mantra over the past several months is about much more
than this one aspect of congressional continuity.
What I would like to see is first a concrete plan of action
developed, approved and understood by all Members of Congress
by the end of this year; second, a plan that includes an
Internet-based and satellite-based communications system where
a Member can log on with secure biometrics from anywhere in the
world to acknowledge that he or she is alive and not
incapacitated and give his or her physical location. This
system also allows the Member to get directions from the House
leadership on the number of Members who have may have been
killed or incapacitated, or what immediate governmental
activities must occur in response to the attack or disaster,
and a time line for when, where and how Congress will
reconvene.
Third, the plan could also include alternative meeting
locations, a means of deliberating, a format for following
parliamentary procedure, a way for the public to follow
congressional activities and ensure Congress upholds the
democratic process, along with many other details for effective
constitutional continuity in congressional operations.
The most important thing is for this plan to establish a
two-way backup communications system that is both reliable and
secure. Moreover, this as I have stated repeatedly, this plan
would only be executed in an emergency.
Thank you, Mr. Chairman and Mr. Hoyer, for starting this
much-needed dialogue on an issue few want to discuss. I believe
it is our duty as Members of Congress to lead this country, to
prepare the legislative branch for any kind of disaster, and to
ensure that freedom and democracy always prevail. Again, my
thanks for your leadership on this issue.
The Chairman. Thank you.
[The statement of Mr. Langevin follows:]
Statement of Congressman Jim Langevin
I would like to thank Chairman Ney and Ranking Member Hoyer for
holding this hearing today on E-Congress.
It is no secret that I have been promoting this idea for months
now. My bill, the Ensuring Congressional Security and Continuity Act
(H.R. 3481), is just a first step. Today's hearing takes the next step
by examining the numerous issues involved in planning for the
unthinkable.
Mr. Chairman, you have been extremely supportive of my interest in
pursuing a means to ensure that Congress can continue to communicate
and function regardless of future attacks in whatever form--be it
weapons-based, anthrax or even a cyber attack--or a natural disaster
like the tornado that severely immobilized many of our Maryland
neighbors. I appreciate your leadership in this endeavor, but I fear
that many of our colleagues do not understand just how necessary it is.
Just this week, CIA Deputy Director for Operations James Pavitt
said, ``Despite the best efforts of so much of the world, [as far as]
the next terrorist attack--it's not a question of if, it's a question
of when.''
September 11th and the subsequent anthrax attack on our
congressional offices exposed just how vulnerable we are, particularly
because we are centrally located. In fact, had the Pennsylvania flight
taken off on time and headed straight for the Capitol, we would have
been casting our journal vote at the very same time.
I am not alone in my concerns for the unthinkable. Four years ago
Speaker Gingrich and President Clinton made a historic commitment:
To analyze our current terrorism threat both here and abroad,
To develop concrete recommendations to stem the tide of
American hatred that had swept over specific regions of the
world, and
To ensure this country remained not only safe, but that our
freedom and democracy would be unshackled by fear or danger.
The Hart-Rudman Report was the result of this visionary pledge.
This Report concluded that ``America will become increasingly
vulnerable to hostile attack on our homeland, and our military
superiority will not entirely protect us. . . . States, terrorists, and
other disaffected groups will acquire weapons of mass destruction and
mass disruption, and some will use them. Americans will likely die on
American soil.''
We cannot ignore what so many leaders and experts in international
terrorism have been telling us over the past several years. The time is
ripe for Congress to take responsible, appropriate steps to ensure that
we can continue to function smoothly if the Capitol Hill buildings are
destroyed or Members of Congress cannot deliberate in Washington, DC.
E-Congress is a powerful option, but it is not the only option. I
know that some Members would not want to vote electronically or may not
be familiar with the Internet. However, today's hearing and my mantra
over the past months is about much more than this one aspect of
congressional continuity. What I would like to see is:
First, a concrete plan of action developed, approved and understood
by all Members of Congress by the end of this year.
Second, a plan that includes an Internet-based and satellite-based
communications system where a Member can log on with secure, biometrics
technology from anywhere in the world to acknowledge that he is alive
and not incapacitated and give his physical location. This system also
allows the Member to get directions from the House leadership on the
number of Members who have been killed or incapacitated, what immediate
governmental activities must occur in response to the attack or
disaster, and a timeline for when, where and how Congress will
reconvene.
Third, the plan could also include alternative meeting locations, a
means of deliberating, a format for following parliamentary procedure,
a way for the public to follow congressional activities and ensure
Congress upholds the democratic process, along with many other details
for effective, constitutional continuity in congressional operations.
The most important thing is for this plan to establish a two-way
backup communications system that is both reliable and secure.
Moreover, this plan would only be executed in an emergency. The
traditional personal, face-to-face interactions that we all enjoy would
not be jeopardized. The E-Congress idea is simply a means to facilitate
an organized system for congressional continuity if, and only if, an
attack or disaster strikes again.
Thank you Mr. Chairman and Mr. Hoyer for starting this much-needed
dialogue on an issue few want to discuss. I understand this reluctance.
Who wants to face such grim prospects? But we must. It is our duty as
Members of Congress to lead this country, to prepare the legislative
branch for any kind of disaster, and to ensure freedom and democracy
always prevail.
The Chairman. I have just one brief question; also, I
guess, you know, a comment, too. If you had--some of the
argument against the theories of what you and many Members are
promoting is that we don't have the face to face. We should
take alternative means. You know, that attack on Washington, of
course, happened while we were in session. If something happens
while we were all back home in the districts, or some Members,
you know, would be traveling, and some type of attack happens
on a massive scale--or let me throw something else out there,
because we all talk about the situation we had, but what about
a smallpox or quarantine? That hasn't been discussed yet.
So I guess if we had preparations and had two or three
sites across the country and were able to logistically, because
of a lot of panic that would occur if this was a nationwide
event of great proportion, then, you know, traffic would be
stopped, you couldn't get to airplanes, you couldn't get to
automobiles. You literally would almost have to account for a
huge military operation that would pick people up, and, you
know, helicopters and 435 Members and find out where they are
at in the first place with the systems working. And that is
what leads me to really think about this. Even if you had three
other prepared sites, the logistics of trying to get people
there could take quite a long time. So I think this is, you
know, one of the reasons it should be looked at.
Now, there are also people that talk about the slippery
slope; while we have this in operation, we will just start
using this as a regular routine. I think that is a great
concern a lot of people have. What are your ideas to have
safeguards in there that if this were instituted, it would be a
rare, rare occurrence of use?
Mr. Langevin. Well, on that score I would agree with you.
Also I share the concern of my colleague Mr. Dreier that we
approach this issue from different perspectives, and we may not
completely agree on this. The one thing we do agree on is in an
ideal world we meet here at the Capitol, that we continue
operations as normal with normal day-to-day interactions, face-
to-face communications. But as you know, Mr. Chairman, it is
not enough to wish anymore that that will always be the case.
What I would say is that we make it clear from the very
beginning that that is for emergency purposes only. We
shouldn't get in the habit of using it on a routine basis. It
should be clear in a mission statement that it was intended for
an emergency backup situation to give us a chip, in a sense, in
our back pocket, as it were, that we could pull out if we
needed to exercise this option of secure electronic
communications if the need arose.
I think that it makes us more secure if those who would
wish us harm out there know that we have other options, other
than just meeting at the Capitol. I think it is a more of a
deterrent than anything else perhaps we could think of that
would ensure our security in the long run. It would force them
perhaps to look elsewhere if they were to think of an attack
because they know that we have other options and not just
meeting at the Capitol as our only option.
The other thing--and you raise it very directly, Mr.
Chairman--the other thing we haven't talked about is the issue
of it is not only about a disaster that would destroy
Washington or a central meeting location for the Members of
Congress, but in the event of a smallpox attack or some other
bio or chemical attack, we may not be able to come in contact
with one another. It may be dangerous to have normal
interaction for a time. Again, that gives us--E-Congress gives
us the option of being able to step back and assess when it
would be safe to meet again in a safe location.
The Chairman. There are other questions to be asked, but I
want to make one comment for further discussions and longer
discussions. But some people also noted in the event we
couldn't have contact with each other, there is the President
and executive ability of Executive Orders, and we have leaders
on both sides of the aisle.
But, you know, Congress is elected, and that is the other
thing that keeps popping in my mind, you do need a Congress,
and things could only go on so long with 8 or 10 people
involved. You need an entire body involved, whether it is
person to person or electronically somehow. So I just think
that is a whole other issue, but it is something that is out
there. I agree Members need to be part of it.
Mr. Hoyer.
Mr. Hoyer. Abraham Lincoln said almost a century and a half
ago that as our problems are new, we must think and act anew. I
think really that is the context of Congressman Langevin's
legislation, Congressman Baird's legislation and others in
terms of what do we do if we lose a significant number of the
Congress, how do we replace them. Former Speaker Gingrich and
former Speaker Foley have made proposals. So I think this is a
time when we really do need to think about contingencies.
I think all of us agree with Congressman Dreier that we
ought to be cautious. We ought to proceed thoughtfully and not
have a knee-jerk reaction. On the other hand, the scenario of
that plane from Pennsylvania not being heroically stopped in
its tracks by those courageous citizens who were on the plane,
it could have hit, could have hit while, as was suggested, we
were voting on the Journal, and had that occurred, we may well
have lost a significant number of Members.
And I think every Member remembers essentially the chaos
and concern--concern understates it--that Members had about
feeling disconnected, and nothing physically happened in
Washington. Obviously a crash happened at the Pentagon, but in
the Capitol complex nothing physically happened. But we know
that there was a great disconnect of the Congress for a
significant period of time when we reconvened--a significant
number of Members--at the Capitol Police station, as you
remember, you and I were there Mr. Chairman--the angst that
Members felt about being disconnected and how they could get
back together as a Congress to be able to respond were very
serious. And I think that is what Congressman Langevin is
appropriately focused on.
I look forward to hearing the testimony of all of our
witnesses, all of whom are very thoughtful observers of
government themselves and will have some thoughts on this. I
thank you for thinking anew, if you will, and trying to figure
out how we respond to a contingency that up to this point in
time has essentially been one that none of us has really felt
was a real one because we thought our homeland was secure, and
indeed many felt it was invulnerable.
We found that out to be not the case. Not only do we need
to contemplate, obviously, terrorists or states that might
visit harm on us, but in my own district just a few days ago we
saw that nature visits on us events which disrupt. We had an F-
5 tornado, as you know, that devastated a town in my district.
We could have a natural phenomenon here that could perhaps not
do what was done in La Plata, but nevertheless have an effect
where we need a contingency plan in place; i.e., Mr. Chairman,
you pointed out dispersed Members unable to get back for
whatever reasons because the air traffic control system goes
down for whatever reason, through terrorist or some other
phenomenon.
So I thank you, Congressman. I don't have a question. I
think I will have a lot of questions after we hear all our
witnesses. And we look forward to sitting down with you and
trying to come up with proposals that are both cautious and
common-sense proposals that will provide for contingencies that
we would prefer not to think about, which we must.
Mr. Langevin. Thank you.
The Chairman. Mr. Linder.
Mr. Doolittle.
With that we appreciate your time here today and your
testimony and the issue you brought to the committee.
Mr. Langevin. Thank you, Mr. Chairman.
The Chairman. Thank you very much. We will move on to the
second panel.
I want to thank the panel for being here today. Let me just
run through the names of the members of the panel today. We
first have Don Wolfensberger. Most people on Capitol Hill know
Don, former staff director for Jerry Solomon in the Rules
Committee.
And the second witness will be Dr. Frantzich, and he is a
professor at the U.S. Naval Academy who has a Ph.D., who is on
a Fulbright scholarship in Prague, and we can see him. You
should be able to view him in back there, it is working, and he
will be video conferencing with us. So we are happy to have him
such a long distance.
The third witness will be Dr. Norman Ornstein, resident
scholar to American Enterprise Institute for Public Policy
Research.
And the fourth is Robert Thibadeau. Dr. Thibadeau is on
leave from Carnegie Mellon computer science department.
We want to welcome all of you, and we will start with the
Mr. Wolfensberger.
STATEMENTS OF DONALD R. WOLFENSBERGER, DIRECTOR OF THE CONGRESS
PROJECT, WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS;
STEPHEN FRANTZICH, PROFESSOR, UNITED STATES NAVAL ACADEMY;
NORMAN J. ORNSTEIN, Ph.D., RESIDENT SCHOLAR, AMERICAN
ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH; AND ROBERT
THIBADEAU, Ph.D., DIRECTOR OF SECURITY ARCHITECTURES, SEAGATE
TECHNOLOGIES
STATEMENT OF DONALD R. WOLFENSBERGER
Mr. Wolfensberger. Thank you, Mr. Chairman and members of
the committee. Good to see you all again. It is nice to know
there are members of the Rules Committee and the Appropriations
and this committee itself all of which are a bulwark of this
institution. I appreciate this opportunity to testify today on
how best to resume the work of the Congress if a catastrophic
occurrence results in large loss of lives of Members and
Congress is preventing from meeting here in the Nation's
Capital.
Specifically, you are interested in whether some form of e-
government might substitute for or complement our traditional
two-century-old practice of Congress sitting together in a
single place deliberating together about the people's business
in the sunlight of public scrutiny and accountability. As I
indicate in my testimony, I purposely loaded up that last
sentence to tip my hand as to where I am coming from, and that
is on the side of retaining our system of collective
deliberation.
Congress, as you know, literally means a coming together.
It seems to me if you lose that, you lose the very essence of
our representative and deliberative democracy. If you start at
the wrong end of the equation of how to go about reassembling
the Congress, that is, in terms of what is the most convenient,
safe and secure for individual Members instead of what is in
the best interest of the Congress and the people it serves, it
seems to me you will be making a terrible mistake.
In that regard, providing for a computerized system whereby
Members may vote on legislation from their districts, I think,
would be contrary to the best interests of this institution and
of the American people because it would destroy the very nature
and strength of our system, which is based on collective
deliberation. It would produce what I have called a reverse
Field of Dreams scenario. You might remember that in the movie
the Field of Dreams the Kevin Costner character was told by
this voice about his dream of a baseball stadium, build it and
they will come. Well, I am suggesting that if you build this
computerized voting system, it will have the opposite effect on
Congress as we know it. Build it, and they will stay away.
The American Express card, as you know, has the motto,
don't leave home without it. I fear that if you give a Member a
remote voting card, it will have the motto, don't leave if you
have it. I think you might as well rename the House of
Representatives the Houses of Representatives because I think
Members will be inclined to stay at home and vote from the
comfort of their homes.
It seems to me that this might well be a very much family-
friendly type of system, but I don't think it is people-
friendly in the sense of we, the people, ordain this
constitutional system to form a more perfect Union.
I have indicated in my testimony some examples of how here
in the Congress by our rules and practices we have, I think,
too much encouraged the idea that legislating only means
voting. And so it is little wonder then that Members might well
jump at the chance of being able to legislate from their homes
if all you have to do is vote. But it seems to me that that
misses the whole point of coming together to deliberate,
compromise, build a consensus on public policy matters that
will have an acceptance, understanding, legitimacy in the eyes
of the people.
Yes, I think a remote voting system is doable, but that is
not the real question. The real question should be is it
desirable. I submit it is not desirable. It is highly
undesirable if you wish to retain a deliberative system as
opposed to moving towards a more plebiscitary system where you
are simply reacting to the public polls and moods and whims
instead of coming together to really think through and talk
together about how to solve our problems.
Moreover, I suggest that remote voting could well be
unconstitutional. I am not a constitutional lawyer or scholar,
but just looking at the Constitution you see that Congress must
assemble at least once every year; that to conduct business
there must be an actual majority present. A quorum is a
majority of Members coming together. So in my written statement
instead of suggesting ways in which to amend the Constitution
or whatever, I am suggesting some ways in which to reconstitute
the Congress in a constitutional manner, and without
elaborating on those items, I will simply list them for you in
concluding my statement.
First I think this committee should exercise its
jurisdiction to consider an amendment to the election law now
by requiring that Governors call for expedited special
elections to fill these vacancies within 60 days if more than
half the membership of Congress is lost in some catastrophic
event.
Second, I think House rules should be amended so that you
can deal with the quorum problems that will occur if you have a
large number of incapacitated Members. I think there is a way
you can do this.
Third, I suggest that there be an Office of Deputy Clerk
created located away from the seat of government, preferably
close to the shadow Cabinet, preferably close to some
counterpart staff from the Senate so that that Deputy Clerk can
help to reconvene the Congress as soon as possible after
Washington has been vacated.
After that--I missed a page here. Further, the current law
that permits the President to convene Congress away from the
Capitol in the event of contagious sickness or extraordinary
circumstance should be amended to allow the officers of the
House and Senate to do so as well.
Fifth, appropriate rules, statutory changes and plans
should be adopted to allow for Congress to meet in two places
at once using teleconferencing in the event that the Capitol is
quarantined with large number of Members both inside Washington
and outside Washington.
Sixth, the leadership of both parties in both Houses should
designate a number of Members to be outside the Capitol during
any joint session of Congress such as the State of Union
Address, such as the President now designates a Cabinet member
to be away.
Seventh, steps should be taken to ensure full access to
current computerized congressional databases and information as
well as for broadcast coverage of the proceedings of Congress
should Congress have to convene elsewhere, and this means
public access.
And eighth, every House and Senate committee and support
officer should devise contingency plans now for carrying on its
functions elsewhere even if all the staff of that committee or
that office are killed in a catastrophic event.
These contingency plans, I think, will go a very long way
to helping flesh out how best to spend the emergency monies
that Speaker Hastert has asked for to ensure the continuity of
Congress elsewhere in emergency situations.
In conclusion, Mr. Chairman, I commend you and your
committee on thinking about and planning for the unthinkable.
You did an outstanding job post-9/11 and in the ensuing anthrax
crisis the following month in equipping Members and key staff
with electronic devices necessary to communicate, to
coordinate, and eventually for Congress to come together and to
resume its business. That, it seems to me, is the most
important and vital function for these information and
communications technologies, that they can provide in a time of
crisis this type of coming together, but they cannot serve as a
substitute for deliberative lawmaking.
Thank you for your consideration of my testimony and my
recommendations, and I will be happy to answer any questions
when the other witnesses have finished, if that is the way you
would like to proceed.
[The statement of Mr. Wolfensberger follows:]
Statement of Donald R. Wolfensberger
Mr. Chairman and Members of the Committee.
I appreciate this opportunity to testify before you today on the
prospects, problems, and alternatives for carrying on the work of
Congress in the event our Capital is the subject of a catastrophic
event that leaves large numbers of Members of Congress dead or
incapacitated and renders Washington, D.C. unsafe as the seat of
government. Specifically, you are asking whether some form of e-
Congress might be a viable alternative to our two-centuries-old
tradition of assembling as a single body, in a single location, to
deliberate and vote on the people's business in the sunlight of public
scrutiny and accountability.
If it seems to you that my previous sentence is loaded with value-
laden terms and phrases, you are absolutely correct: I believe in
tipping my hand early--especially if my time is limited. And in this
instance, I want to weigh-in heavily on the side of reconstituting
Congress in a constitutional manner. To me that means reconvening
Congress as soon as possible, at a new site, with elected
representatives of the people, assembled in a collective manner to
deliberate. And by deliberation I mean a reasoning together about the
nature of a problem and alternative solutions, and, out of that
process, the arriving at a mutually agreed upon policy consensus. If
there were still any doubts as to where I am coming from, I could
recommend reading my book, Congress and the People: Deliberative
Democracy on Trial--but that might sound too much like a plug.
We should keep in mind, first and foremost, that Congress literally
means ``a coming together,'' and if you lose that you will lose the
very essence of our representative and deliberative democracy. The
worst mistake you could make is to start at the wrong end of the
reassembly process and work back, that is, to begin with what may be
the most convenient, safe, and secure arrangement for individual
Members of Congress, such as permitting their committee and floor votes
to be cast from remote computer stations in their districts. Instead,
you must begin with what is in the best interests of the institution of
Congress and the American people which it serves and represents.
To me, the very phrase, ``convening an e-congress'' is an oxymoron
because you cannot have coming together of what the Framers intended to
be a deliberative body of Members if they are sitting at 435 voting
stations scattered across the country. The idea of building a computer
system on which Members could not only access floor or committee
debates, but actually vote on pending questions, will lead to what I
would call ``a reverse Field of Dreams scenario.'' You will recall in
the movie, Field of Dreams, the Kevin Kostner character was advised by
a voice about how to proceed on his dream of a baseball stadium.
``Build it, and they will come,'' the voice intoned. A remote voting
system will have the opposite effect for the actual Congress: ``Build
it, and they will stay away.'' We've already had an experience with
that when we had proxy voting in House committees: it tended to
encourage absenteeism.
American Express can say of its card, ``Don't leave home without
it.'' Give Members a remote voting card, and its motto soon will be,
``Don't leave home if you have it.'' We might as well rename this body
the ``Houses of Representatives.''
In a way the current rules and practices of the House are
responsible for this mentality that legislating only means voting.
Every Monday and Tuesday you roll and cluster votes on suspension bills
which now account for 75 percent of all laws enacted. You postpone and
cluster votes on floor amendments, in the rare instances in which
amendments are allowed. You can only force a quorum call when a vote is
pending. It's little wonder that some Members continue to pressure for
a rule change that will allow them to do the same thing in committee,
that is, show up at the end of the day to vote on all the amendments
offered in markup during the course of the day.
The more that legislating in committee and on the floor is reduced
in the minds of members to voting, the more you will become a
plebiscitary rather than a deliberative body. If that happens, it wont'
be long before the people decide they can cut-out the middle man, you,
and cast votes themselves on pending Federal legislation.
Before I proceed further, however, I want to commend this committee
on the extraordinary work it and its staff did under very difficult
circumstances in the immediate aftermath of September 11th as well as
in the subsequent anthrax crisis the following month. Had it not been
for the speed and flexibility of your decisions and actions in
equipping Members and key staff with adequate electronic equipment to
enable them to communicate and coordinate with their office staff,
their party leaders, and their committees, Congress would have been
hopelessly adrift for weeks rather than days. But ultimately, those
electronic devices were used to facilitate a coming together to do the
business of the Congress.
That is how I view the utility of our information age
technologies--as a tool for accessing information and communicating
with others. These wonderful new technologies, however, should not be
viewed, in my opinion, as a substitute for the face-to-face
deliberative process. Your cannot have a genuine exchange of opinions
and arguments in a cyberspace chat room; and your cannot develop
compromises and consensus by spamming your colleagues via e-mail, no
matter how persuasive you may think your arguments are.
The question to me is not whether an e-Congress is doable. The
techies will tell you it is, and I suspect they will eventually be able
to devise a secure way to make it so. The question, rather, is whether
it is desirable. To me, obviously, it is highly undesirable, for it is
contrary to everything our constitutional system is about. In that
regard, I would suggest that, if the committee should consider
providing for an e-Congress in the sense discussed above, it would
require a constitutional amendment. Article I, section 4 (as modified
by the 20th Amendment) requires each House to assemble at least once a
year, and section 5 requires a majority of each House to constitute a
quorum to do business. It is counterintuitive to think that a majority
of members in a disassembled House, voting remotely from their
districts, could count as a quorum for doing business.
In the time remaining, let me offer some suggestions on what does
need to be done if, in extraordinary circumstances, the Congress needs
to be reconstituted in a constitutional way as expeditiously as
possible.
First, this Committee has jurisdiction over Federal election laws
which should be amended to provide for expedited special elections. I
have proposed that, in the event that over half the membership of the
House are lost, the Governors of the states should be required by
Federal law to schedule final elections to fill vacancies not later
than sixty days after such determination is made.
Second, I would propose that House Rules be changed to provide
special procedures in such circumstances, including a two-thirds vote
to declare vacancies for those seats in which the House determines
members are incapacitated beyond likely recovery during that Congress;
and second, a rule that would not count for quorum purposes those
Members granted leave of absence for reason of temporary incapacity. (A
summary and text of the first two proposals are appended to this
statement)
Third, I would propose that the House adopt a rule to create the
Office of Deputy Clerk of the House to be elected at the beginning of
each Congress, and that the deputy be located outside of the Nation's
Capital, preferably in proximity to the ``shadow cabinet.'' In the
event that the Speaker and Clerk are killed in an attack, and Congress
cannot reassemble in Washington to elect a new Speaker, the Deputy
Clerk would be responsible for calling the survivors together in a new
location, and provide for and preside over the convening of the House
until a new Speaker is elected. Obviously, the Senate should adopt a
parallel rule providing for a Deputy Secretary, who would work together
with the Deputy House Clerk and the ``shadow cabinet'' to ensure an
orderly reconvening of Congress in a new location, and close
coordination between the branches.
Fourth, the law that now allows the President to convene Congress
in a location other than the seat of government due to ``the prevalence
of contagious sickness, or the existence of other circumstances'' (2
U.S.C. 27), should be amended to allow for the Speaker and President
Pro Tempore of the Senate, or, in the event of their death, the Clerk
of the House, the Secretary of the Senate (or, if either have died,
their deputies) to call for the convening of Congress in another
location. Congress should not depend on a presidential proclamation to
meet at another place in such extraordinary circumstances.
Fifth, in a related contingency, appropriate rules, laws and plans
should be adopted so that, in the event that the Capital is subject to
a bio-terrorist attack requiring a quarantine of the city, and large
numbers of members are both in the Capital and outside the Capital,
Congress be permitted to conduct committee and floor sessions from two
locations using teleconferencing.
Sixth, I would propose that, just as the President designates a
cabinet member to be away from the Capital during a joint session of
Congress such as the State of the Union Address, House and Senate
leaders should designate a small group of members from each House,
reflecting party ratios in their respective houses, to be away from the
Capital as well during such occasions.
Seventh, provision should be made for a Congress that is convened
away from the Capital to have access by computers to all of the
information now available to it through THOMAS, CRS, CBO, the House and
Senate web sites, GPO, and other sites containing information vital to
the continuity and vitality of the lawmaking process. If Congress is
relocated to another location in the U.S., it should not have to be
dependent on servers located in Washington which may have been disabled
due to a massive attack on the Capital.
Moreover, every effort should be made for the public to have access
to the same congressional web sites it now does. And, arrangements
should be made with C-SPAN or an alternative broadcast facility in the
new location to cover House and Senate floor proceedings for public
viewing. It is more important than ever during such a crisis that the
people can see what their government is doing and that Congress can
perform its informing function through the Internet and broadcast media
to ensure that public knowledge of and confidence in government is
sustained.
And, eighth, every committee of the House and Senate and every
support office which is vital to the functioning of Congress should
adopt a contingency plan for the resumption of their responsibilities
away from the Capital, even if current employees do not survive an
attack. This should not only include making information on the role and
functioning of their offices available at the alternative location, but
also identifying capable and experienced individuals now living away
from Washington, who could be called upon to assist in resuming the
functions of those offices.
In conclusion, Mr. Chairman, I again commend you and your committee
on beginning to think about and plan for the unthinkable. I likewise
commend Speaker Hastert on calling for a contingency fund to allow such
plans to go forward immediately. Obviously, he will need the assistance
of committees like yours, the appropriators, and the various
congressional support offices to flesh out how best this money should
be spent. The contingency plans called for in my final recommendation
could go a long way in helping to make that determination. I firmly
believe that the Framers of our Constitution got it right from the
start when they designed this amazingly resilient and dynamic system.
It is now up to you and others to keep it right from the re-start in
the event that Congress is substantially destroyed in a catastrophic
occurrence.
Thank you for your consideration of my testimony and suggestions. I
will be happy to answer any questions.
[Donald R. Wolfensberger is Director of the Congress Project at the
Woodrow Wilson International Center for Scholars under the direction of
former Representative Lee H. Hamilton (D-Ind.). He is a 28-year staff
veteran of the House of Representatives, culminating as chief-of-staff
of the House Rules Committee in the 104th Congress. He retired from the
House in February, 1997. He is author of Congress and the People:
Deliberative Democracy on Trial (Johns Hopkins University Press, 2000);
``Can Congress Cope With IT? Deliberation and the Internet,'' in
Congress and the Internet. James A. Thurber and Colton C. Campbell,
editors (Prentice Hall, 2002, forthcoming); and, ``Congress and the
Internet: Democracy's Uncertain Link,'' in Democracy and the Internet,
Leslie David Simon, editor (Woodrow Wilson Center Press, 2002,
forthcoming). The views expressed in this statement are those of the
author alone and do not necessarily reflect the views of the Wilson
Center's staff, fellows, trustees, advisory groups or organizations
that provide financial support to the Center. The Woodrow Wilson Center
is a nonprofit, nonpartisan organization supported by both public and
private funds, and does not take positions on public policy issues.]
Summary of Provisions of Statutory Alternative for Filling House
Vacancies Under Extraordinary Circumstances (Amending 2 U.S.C., ch. 1,
sec. 8)
Existing language in the law which leaves it to the states
and territories to prescribe the time for holding special elections to
fill vacancies in the House under ordinary circumstances is left
unchanged.
Under the extraordinary circumstances in which vacancies
in House exceed half the authorized membership, the executive authority
of each affected state affected shall issue a writ of election to fill
the vacancy not later than 60 days after the vacancy is declared,
unless a regular election occurs during the period or within 30 days
thereafter.
A vacancy by death or resignation can be declared either
by the governor of the state or by the House (by adoption of a
resolution), and, if both the House and governor declare a vacancy, the
60 day time frame for the election to take place begins with the date
on which the earlier such declaration is made.
The House may, by two-thirds vote, declare a vacancy by
incapacity based on the request of the incapacitated member or on its
own determination, based on competent medical authority that the member
is unlikely to be able to carry out the trust and duties of office for
the remainder of that term.
If the House finds that a member is temporarily
incapacitated and likely at some future point during that term to be
able to resume the trust and duties of office, the House shall adopt a
resolution declaring temporary incapacity and authorizing a leave of
absence (with compensation and benefits). During the period of absence
the Representative shall not be counted as a Member of the House for
purposes of a quorum.
A person declared temporarily incapacitated who resumes
the duties of office shall be counted for the purposes of determining a
quorum.
Any Representative named in a resolution declaring a
vacancy or temporary incapacity shall not be counted for purposes of
determining a quorum during consideration of that resolution.
The provisions affecting internal proceedings of the
House, are enacted as part of its rule making authority; are considered
rules of the House as they apply to the procedures to be followed
during extraordinary circumstances; supersede other House rules only to
the extent changes its rule at any time.
A Statutory Approach To Filling House Vacancies Under Extraordinary
Circumstances
Title 2 U.S. Code (``The Congress''), Chapter 1 (``Election of
Senators and Representatives''), section 8 (``Vacancies'') is amended
to read as follows (with new language printed in italic):
SEC. 8. VACANCIES
(a) The time for holding election 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)(1) Notwithstanding subsection (a), under extraordinary
circumstances (as defined in paragraph 2(A)), the executive authority
of any state in which a vacancy exits shall issue a writ of election to
fill any such vacancy, with the election to take place not later than
60 days after the vacancy is declared unless a regularly scheduled
election for the office is to be held during such 60 day period or
within 30 days thereafter.
(2) For the purposes of this subsection only--
(A) ``extraordinary circumstances'' shall be those in which
vacancies in the representation of the states in the House of
Representatives exceed half of the authorized membership of the
House;
(B) a vacancy caused by death or resignation may be declared
by the executive authority of a state or by resolution of the
House, but the 60 day period in which an election shall take
place shall begin with the earliest such declaration made; and
(C) a vacancy caused by incapacity may only be declared with
the concurrence of two thirds of the House either upon a
written request signed by the incapacitated Representative or
upon a determination by the House, based on competent medical
opinion, that the Representative is unlikely to regain the
ability to carry out the trust and duties of office during that
term.
(3)(A) If a Representative is found to be temporarily
incapacitated and likely at some future point during that term
to regain the ability to carry out the trust and duties of
office, the House may declare by resolution that the
Representative is temporarily incapacitated and is granted a
leave of absence with full compensation and benefits.
(B) A Representative granted a leave of absence by reason of
temporary incapacity under extraordinary circumstance shall not
be counted for purposes of determining a quorum during such
absence.
(C) If a Representative who has been declared temporarily
incapacitated resumes the trust and duties of office, the leave
of absence shall be vacated and the Representative shall be
counted for the purposes of determining a quorum.
(D) Any declaration by the House of Representative's
temporary incapacity shall not extend beyond the current term
of the Representative.
(4) A Representative named in any resolution considered
pursuant to paragraphs (2) and (3) shall not be counted for
purposes of determining a quorum during consideration of that
resolution.
(5) The provisions of paragraphs (2), (3), and (4), insofar
as they affect the internal proceedings of the House, are
enacted--
(A) as an exercise of the rule-making power of the House and
as such are deemed a part of the rules of the House, but
applicable only to the procedures to be followed by the House
under extraordinary circumstances;
(B) supersede other rules only to the extent they are
inconsistent therewith; and,
(C) with full recognition of the constitutional right of the
House to change its rules at any time, in the same manner, and
to the same extent as in the case of any other rule of the
House.
The Chairman. Before we go on, I want to note there is a
group in the hearing room from Illinois, from Close Up. So we
welcome you to the Capital.
Mr. Wolfensberger. My home State.
The Chairman. His home State. Welcome.
We will move on to Dr. Frantzich, who is joining us from
Prague.
STATEMENT OF STEPHEN FRANTZICH
Mr. Frantzich. Thank you very much.
To paraphrase Lincoln, the world will little note nor long
remember what I say here, but they may remember what I do here
this morning, because this is a real world test of one of the
technologies that may be necessary if we go to an E-Congress. I
am not really here to advocate or denigrate an E-Congress idea,
but I would like to take a few steps to analyze it from a
science perspective.
As we heard a couple of times this morning, just because
you can do something, there is no one that says you have to do
it. There is a great deal of pressure when technology comes
along to use it. The law of the instrument: Give a child a
hammer, and the whole world becomes a nail. The kind of
corollary to that is the law of the least appropriate target:
You give a child a hammer, they will likely hit the vase rather
than hit the piece of wood.
So I think we have to be very careful in terms of how we
apply these technologies, but after the events of September
11th, we need some sort of a contingency plan if Congress is
indispensable even for a short period of time and Members are
dispersed to two or more places, perhaps some of these
geographically superceding technologies that will allow it to
operate.
So let me begin with the assumption that we can solve the
access problem, Members can get to places where the technology
is there; that we can solve the security problem, that we know
who these Members are and they are legitimate participants; and
third, we want a deliberative Congress. So these are my
assumptions.
Let me raise four quick ideas, one about who can
participate; second, what is the impact on deliberations;
third, how do we maintain the official record; and fourth,
choosing a technology.
First of all, in terms of who can participate, on one level
today Members of Congress can choose whether they are going to
go to a committee hearing, choose whether they are going to
vote on the floor. We know that no technology is going to be
100 percent possible. We are going to have breakdowns. So if we
are going to have Members of Congress either deliberating or
voting, we are going to have to change the rules in such a way
that allows for verification that their words got into the
Record and their votes were correctly listed. That may mean we
have to have a longer voting period. But then that has
implications for strategy. What about Members who hold out
their votes knowing there will be a delay? In my written
testimony I try to point out some other scenarios where there
may be problems of verifying votes even if we have a very
redundant kind of system that guarantees access.
Secondly, collectives of Members. We have been talking so
far about what I call front-channel communication, Members of
Congress communicating with each other. But there has to be
back-channel communication in the Congress. Party offices have
to communicate with each other. Special interest caucuses have
to communicate. We have to make sure those are maintained if we
have a remote Congress.
Third, staff. It doesn't do much good to send Members of
Congress remotely without their staff or some way to
communicate securely with their staff. Staff is extremely
important to Congress. We have to maintain that provision.
And then finally the public. This is where I get a little
more scared. Technology is a malleable tool. I can see two ends
of a continuum. On one end we can have a very secure kind of
system as Members hunker down in their voting terminals,
whether they are individual terminals or four our five remote
sites, very secure, very efficient, very accessible to the
public. That might sound kind of appealing to be insulated in
that way, but it doesn't do a great deal for representative
democracy.
On the other hand, I can see Members of Congress out there
among their constituents kind of with their mobile phone
picking up information and then voting on the basis of that.
Very representative, but not very efficient.
The kind of magic of Congress, the tradition of Congress is
having Members of Congress serve as a filter for ideas. If we
move to an E-Congress, we have to find a way to maintain that
filter; that there is enough representation, but there also is
enough efficiency.
We also have to worry about who has access to the Members
of Congress. If we allow some members of the public input in E-
Congress, we have to make sure we allow most of the public,
most of realm of the public. We have to worry about who has
access in technology and who doesn't.
Secondly, very quickly, I have some concern about
deliberative content. There are at least three kinds of
vehicles which we may want to talk about later on. We can do
video conferencing, like we are doing this morning. We could do
some sort of chat rooms which are interactive. We could do some
sort of bulletin boards. Each have their advantages and
disadvantages, but they raise important procedural questions:
Who is going to have the right to control those chat rooms,
control who speaks and how they speak? And as someone mentioned
before, there is the question of face-to-face communication and
deliberation. We know in research and other realms that people
are willing to say things and do things on e-mail that they
would never do in face-to-face conversations. The U.S. Congress
has been very concerned in recent years about levels of
conflict, when they have increased levels of conflict, if the
technology allows people to do things that they wouldn't
otherwise do.
Thirdly, we have to worry about the official record. The
legal official record of the Congress is the Congressional
Record. We allow people to revise and extend their remarks. So
it is a written record. What happens when we have E-Record,
which is a much more robust record? It may have visuals, it may
have audio and all sorts of other things. How do we develop
that record? How do we distribute it? Who will have access?
When will they have access?
Finally, I hope this committee as it looks at the these
possibilities doesn't link their ideas to one particular
technology. Today we think of the Internet. Ten years from now
the Internet is going to be passe. There is going to be
something else out there. There is going to be a new
technology, maybe a combination of current technologies. So I
think what the committee has to think about is what are the
functionalities that we want to worry about? Do we want to have
different functionalities of technology as opposed to specific
technology?
Finally, technologies don't impact on institutions like two
rudderless ships that collide at night. They are affected by
the traditions of those institutions, and they are affected by
the decisions of those institutions. I see this hearing as a
way to strengthen the rudder of Congress as it looks at these
new technologies, understand what lies ahead, and hopefully
provide a much smoother trip into the world of new technology
solving problems. Thank you.
The Chairman. Thank you, Dr. Frantzich.
[The statement of Mr. Frantzich follows:]
Statement of Stephen Frantzich, Professor, U.S. Naval Academy
The application of new technology is often a conflict between what
is possible and what is desirable. Just because something can be done
technologically does not mean it should be done. The ``Law of the
instrument'' (often paraphrased as ``give a childe a hammer, and the
whole world becomes a nail.'') creates tremendous pressure to apply new
technologies simply because they exist. The ``Law of the least
appropriate target (paraphrased as ``give a child a hammer and he will
hit the glass vase rather than the nail'') suggests the common tendency
to apply new technologies to the wrong situations.
Prudent proponents of technological change need to recognize that
the best applications of new technologies are demand driven. They must
meet an evident need rather than simply represent the application of a
new tool. The events of September 11th raise a real question as to
whether the geographic concentration of the nation's top legislative
leadership represents a real danger to the functioning of government
and suggests considering ways to neutralize that danger and provide a
contingency plan should face-to-face deliberation be impossible.
A key characteristic of existing and emerging technologies is their
ability to supercede geography. The telegraph, telephone, television,
and fax machine all in their day provided similar advantages for
particular formats. The advantage of the Internet is that it provides
the potential for transmitting information in a variety of formats
(audio, video, textual) simultaneously and with the potential for
interactivity.
A. Should Congress Take Advantage of Geography Superceding Technologies
for Its Most Basic Collective Functions?
The initial question is not one of technology, but one of
philosophy and politics. Before exploring particular technologies we
must face up to the question: ``Should Congress be allowed to meet
remotely?'' If we assume the worst case scenario that Congress can not
meet face-to-face anywhere, the question revolves around the
consideration of what absolutely necessary functions of government must
be maintained and can they be provided without congressional input?
Clearly specific constitutional requirements and the desire for checks
and balances suggest the danger of operating for significant periods of
time without a functioning Congress.
If Congress is indispensable, even for a short time, then an
alternative must be found. It is assumed that any movement toward an e-
Congress would be a temporary solution to handle a very limited set of
functions such as passing a budget, declaring war, or passing
legislation to ameliorate the situation which brought on the crisis. If
that question of whether we should consider an e-Congress is answered
with at least a tentative ``possibly,'' the followingconsiderations
should guide the final decision and the potential real technological
applications.
B. Some Concerns About an E-Congress
We will begin with the assumption that basic access and security
issues can be satisfactorily solved to assure that all Members have the
equipment and technological skill to participate and the validity of
the legitimate participants can be assured.
(1) Who Is Allowed To Participate?
Individual Members: Not every Member of Congress participates in
every committee meeting in which they are a legitimate member or in
every floor debate. When Congress and its committees meet in their
traditional ways, it is the individual Member who chooses whether to
participate or not (and who must justify their decision to others). A
danger of virtual meetings lies in the fact that accessibility to the
necessary technology, equipment malfunctions, and user skills (or lack
thereof) could deny some Members the right to participate even if they
wished to. The danger expands in a terrorism scenario when the
technology is likely to be disrupted. No technology will work 100% even
under the best of conditions. For on-line deliberation, procedures
would have to be determined for allowing Members to insert comments
which technology malfunctions blocked. Much of this could be handled by
minor changes in the ``revise and extend'' rules. More difficult would
be how to handle the assertion ``that if only I had been able to make
my point the result would be different.'' It is impossible to ``unring
the bell'' (or more precisely insert the ringing bell in a completed
sequence.) Redundancy should in all but the most dire situations (a
complete disruption of all telecommunications) provide enough
alternative ways to assure participation.
A related question is when an e-Congress would meet. While the
technology would allow (and perhaps even encourage) a 7/24/365
continuous meeting schedule, personal convenience and the need for time
to reflect suggests clear decision rules on meeting times. The concern
is exacerbated by the fact that the events that would lead to an e-
Congress would be so disturbing that there would be pressure for
immediate action. There is a danger that the choice of meeting times
would be used even more strategically than today to deal in or deal out
certain types of members (based on time zones or conflicting committee
meeting schedules). Using the technology to ease the pressure of time
by keeping the voting terminals (or the opportunity to enter the
debate) open raises another set of questions about pressuring Members
to change votes or to ``correct'' statements.
For voting remotely, the technology would need to provide immediate
user feedback on if and how their vote was recorded. Redundancy of
input would not be enough. The importance of the vote in congressional
procedures is so great that absolute verification would be a minimum
requirement. It is a realistic assumption that the system would not
work 100% of the time. An acceptable decision rule would have to be
established for defining legitimate victory margins for votes and the
time allowed to challenge a vote. It makes sense that if the winning
margin is less than the number of Members claiming technological
difficulties or without access, the vote would have to be redone. This
raises the issue of strategically withholding votes (and claiming
technological difficulties) and the potential for drawn out wrangles
over the legitimacy of decisions. It would also be necessary to
formulate rules about changing votes since the current 15 minute rules
for vote duration (in the House) would probably not apply to remote
voting.
Collectives of Members: It is only individual Members who
participate in the deliberation process. Remote deliberation would
require the capability of party and special interest caucuses within
Congress to meet and in some cases cast formal votes. Party leaders are
dependent on ``back channel'' communications with colleagues before and
during votes. The power of persuasion is typically dependent on
proximity and the ability to transmit decision-driving information. To
the degree that party and interest group leaders lose proximity and the
ability to transmit information, they become irrelevant in the
congressional process. The technology would have to allow for secure
back channel communications between individual Members and between
leaders and groups of followers.
Staff: Currently Members of Congress depend heavily on their staffs
for information and guidance. An e-Congress would need to develop
capabilities for staff input, especially if a Member and his or her
staff are physically separated. A secure system for Member input would
have to be matched with a secure system for staff to Member (and Member
to staff) communications. Sending Members off to secure locations cut
off from their staff would to little to improve decision-making.
The Public: Current congressional procedures allow input from a
variety of individuals and groups in the form of direct communications
with Members and formal testimony. Remote deliberation technology
should not isolate Members from such input, nor skew the composition of
those with the capability to participate.
Existing technologies invite two alternative images. At one extreme
we could guarantee security and efficiency at the cost of public input.
At the other extreme we could guarantee responsiveness at the cost of
limited security and reduced efficiency.
On the one hand we can imagine fearful Members in their secure
electronic voting bunker guiding the nation's future. The image of the
Member hunkering down with their remote terminal ready to make key
voting decisions while isolated from constituents and organized
interest groups may at times sound appealing, but would vitiate
Congress role as a representative institution. Such a scenario would
encourage individualism and members acting at best as ``trustees'' for
constituents, looking out for their presumed interests, but isolated
from their input. Even in times of crisis, the public has a right to
participate.
At the other extreme the technology could be used to dispatch
Members out into the field to collect and transmit public desires
faster and more accurately then when they are filtered by staff and
tempered by the passage of time. The image of five hundred and thirty-
five ``electronic voting booths'', each manned by an elected official
on a``field telephone'' would lead to increased localism and an extreme
case of the Member serving as a ``tribune,'' simply recording the
public mood and passing it on. Security, efficiency and protection from
irresponsible policy would be continuing problems in such a scenario.
While the technology could support either of the extremes, the
legacy of two-hundred years with the existing Congress has been its
ability to find a balance between the two extremes, allowing public
input, but tempering it with judgment. An e-Congress would have to find
a way to maintain that balance.
Any scenario allowing some public input, must also guarantee the
breadth of public input. To the degree that electronic communications
become the coin of the realm in an e-Congress, more options for
subsidized options for public input and more sophisticated ways of
evaluating such input will be necessary.
(2) Some Concerns About Deliberation Content
It is assumed that the operation of an e-Congress would involve, at
a minimum, an interactive chat room (or bulletin board) equivalent of
floor debate, managed largely in the same way as current debate by
floor leaders. Who would allocate the order of ``speaking'' and perhaps
the length of comments? If the technology were to involve a real-time
chat room or video-conferencing, the debate would look much more like
current floor debate since only one person could speak at a time and
some semblance of argument order would be retained. A bulletin board
approach would increase flexibility, but its ``threads'' would be less
coherent and arguments much more easily lost.
Another concern is that it is widely assumed and supported by
research that face-to-face communications tend to be more temperate
than that which occurs on-line. People say things in e-mails they would
never say to someone personally. With the concerns over comity and
collegiality in Congress, an e-Congress could exacerbate conflict. New
applications of formal rules and new informal norms of behavior would
probably be necessary.
(3) How Will Official Records Be Accessed and Maintained?
Collecting, editing and archiving the records of an e-Congress
would be a challenge, depending on the technology in use. The existing
technologies allow audio, video and text. It is unclear how these would
be stored to provide an accurate, integrated record of what went on in
the deliberation process. The courts have ruled that legislative intent
derives from the written Congressional Record, which is an
intentionally edited version of reality reflecting what Members wished
they had said. An e-Congress could encourage the retention of a more
robust record including material in a variety of formats. While such a
record would give a better feel for the decision input, the challenge
of maintaining such records (and the equipment necessary to access
them) will increase the cost and complexity of archiving.
A related question is who will have access and under what time
schedule? Real time access to digitized records would empower
technologically sophisticated citizens (and collectives of citizens in
interest groups), but could increase the gap between citizens in the
know and citizens in the dark about congressional activity. Since
congressional records go through a variety of transfigurations (drafts,
amended proposals, ``revisions and extensions'' of remarks, etc.), the
record at any one point in time is a snapshot of a moving picture. In
an e-Congress with public access materials, the definition of ``the''
official record would have to be carefully defined and explicated.
(4) Determining the Technology
If a plan is developed for an e-Congress, it is important not to
tie legislation, proposed rules, or contingency plans to a particular
technology. What we call the Internet today will in ten years seem as
outdated as 8-track tapes and video disks. We don't know what the next
wave of technology will be called or what its capabilities will be. The
rationale for proposed applications should be based on functionalities
nor exiting tools. The designers of applications would have to ask,
What types of information would need to be transmitted (is audio alone
enough? What about video and text?) What are the minimum requirements
to allow Congress to perform its most important functions?
C. The E-Congress Journey
None of the above are `'killer'' concerns making an e-Congress
impossible or undesirable to implement. They simply raise questions
that need to be faced. Technologies do not impact on social
institutions like two rudderless ships colliding at night. Applications
are filtered through the traditions and procedures of the existing
institutions and can be steered by careful planning. The exciting part
of this hearing lies in strengthening Congress' rudder for guiding it
through the exciting, but dangerous shoals of designing a viable
alternative for dangerous times. If Congress is going to launch itself
on the journey toward an e-Congress, it is wise to consider what it is
likely to encounter along the way.
notes for frantzich testimony
1. Professor Frantzich wrote the first book about Congress's use of
new technology (Computers in Congress: The Politics of Information,
1979) as well as numerous other more recent books, articles, and
reports for Congress and various think tanks on the impact of
technology on political institutions. This semester he is serving as a
senior Fulbright Scholar in the Czech Republic. He can be contacted at
[email protected].
2. The debate over whether a remote meeting would meet the
constitutional requirement of Congress ``convening'' are reminiscent of
the debates a decade ago over whether the electronic versions of
congressional outputs were really ``documents.'' Today it is hard to
believe the intensity of the battle and that participants could not (or
would not) readily agree that it was content, not format that defined
congressional outputs as documents. The idea of ``convening'' at its
heart implies joining together to take action. That function does not
require physical proximity.
The Chairman. Next Dr. Ornstein.
STATEMENT OF NORMAN J. ORNSTEIN
Mr. Ornstein. Thank you, Mr. Chairman, Mr. Hoyer, Mr.
Linder and Mr. Doolittle. I appreciate the opportunity to
testify. I want to commend you very much for your leadership to
ensure the continuity of Congress after some kind of emergency
or catastrophe for this hearing as well as your efforts to
improve the security of the Capitol, secure alternative meeting
sites and develop emergency communications channels. It is all
a testament to your seriousness of purpose.
I also want to take the opportunity to commend particularly
you and Mr. Hoyer for your constructive bipartisanship on
election reform, which has really been a model, I think, to how
this institution can and should work, and it is going to be
very good for the country as well.
To get back to something you said at the beginning, Mr.
Chairman, I think it is impossible to underscore enough the
importance to this country after September 11th of having
Congress here and operating, not only in making important laws
authorizing the use of military force, appropriating money for
emergency purposes and so on, but just the symbol, as I have
discussed this issue with some of your colleagues, and the need
to make sure that under every possible scenario we can have a
Congress up and acting quickly, and it is especially important
after some kind of a national catastrophe.
Some have reacted by saying, what is the big deal? If we
had a period of, in effect, benign martial law for a short
period of time with an executive running things, no great
disaster. I disagree. I think we have to take every step to
make sure that in every worst-case scenario we have a plan in
place, and one that will have not just a Congress, not just one
that might have three Members of the House which somehow we can
manipulate to make into a quorum, but one that has the
representative nature that this body represents across the
country.
Just a few initial comments. A year or so ago I was down at
the Greenbrier, and I made the tourist trip into the bunker. It
was quite extraordinary to see the elaborate preparations that
we had made in the event of a catastrophe during the Cold War.
But it also becomes clear that we made all of these elaborate
plans based on a model.
The model was that missiles would be lobbed from Siberia
and we would have an hour or an hour and a half to get
everybody together and take them 200 miles away. We now face
obviously a very, very different kind or series of threats. On
September 11, that morning I was out at Dulles Airport, I got
called back from the jetway when they canceled all the flights,
and I saw the chaos that we had here.
I then reflected very soon thereafter on the reality that
if that flight had taken off on time--now, it was a United
flight so admittedly the odds were not great, but if it had
taken off on time, those passengers would not have known that
they were headed on a suicide mission, and the odds are it
would have headed for the greatest symbol of American
democracy, which is this Capitol dome. If it had hit and the
jet fuel had exploded, as it did at these other sites, we might
very well have had half the Members of the House killed and the
other half in burn units, possibly for weeks or months--no
quorum, no Congress, no ability to function. That, along with
other scenarios, underscored for me on September 12 the
importance of doing something; and I have been working on this
set of issues ever since.
I want to commend my colleague Don Wolfsenberger. I
actually convened a working group soon after those events to
look at different opportunities, and he has come up with some
extraordinarily constructive proposals that involve changes in
the rules and, in some instances, changes in law. I don't think
that is enough, frankly, given the possible scenarios,
including a smallpox attack, quarantine strategies.
So we have got to think about alternatives when we can't
convene in one place, when we can't have all the Members
together, but also frankly when we might not, under existing
rules, be able to convene a quorum even if we accept the
Parliamentarian's interpretations that have been in existence
since the Civil War that a quorum is not half of all the
Members but half of all the living Members.
There are just too many scenarios where we could have large
numbers of people either incapacitated or unable to gather
together to make other things important. That gets to the
jurisdiction of the committee and the subject of today.
Let me also stress that I believe it requires--and I
believe reluctantly, because I don't favor any constitutional
amendments as a general rule--that we really are going to have
to look at the possibility of something to provide for
temporary memberships, especially under so many of these
scenarios in this terrorist age where incapacitation may be a
greater threat than destruction or death of all of the Members.
That is true for the House and the Senate.
While we might be able to deal with it in a stopgap way by
redefining a quorum to take the incapacitated Members out of
it, I just don't want to have a period of time when we might
have six or eight or ten Members of the House who might all be
Members of one State's delegation, for example, who just
happened to be away making these important decisions.
I think we have to find ways to convene the Congress in the
most robust fashion.
I commend, obviously, Mr. Langevin and Mr. Baird who seized
on these issues right from the beginning. There is one area of
Mr. Langevin's bill and testimony that I think is especially
important for us to grapple with, and it struck me also on
September 11 with the absurdity at the Pentagon that people
from different rescue teams couldn't communicate with one
another.
We have clearly a terrible problem: It is a larger spectrum
problem with emergency communications. The cell phone system
froze, and we have people from different areas and almost any
kind of a tragedy certainly, as we know in the Washington area,
is going to involve Montgomery County and, very possibly,
Prince George's County in Maryland, that will involve Fairfax
and other counties in Virginia. If they can't communicate with
one another, and they might all end up convening in the
Capitol, we have got a terrible problem.
And if Members of Congress are using cell phones or are
using BlackBerries, but they are all part of a larger system
that simply can't handle the traffic, then we are going to have
a crisis. So we have got to find secure and dedicated means of
communication, and communication especially, as Mr. Langevin
says, to start with, to make sure that we know where Members of
Congress are and whether they are alive and able to
communicate.
Think of the chaos at the World Trade Center and the
Pentagon where we didn't know who was there. We still don't
know exactly who was there. We didn't know who was alive or who
wasn't alive. If we had rubble around, we could have a
situation where we simply wouldn't have any idea. At the same
time, even as you think about the notion of convening an E-
Congress--and I associate myself strongly with the remarks of
Mr. Dreier and of Don Wolfsenberger about the undesirability of
doing such things except under the most dire of circumstances,
and I want to recount for you a conversation, just something I
mentioned to Mr. Linder before we started.
Several years back, my friend and yours, John Kasich,
called me up, very excited--though I suppose it is redundant to
say ``very excited''--and said, ``I've got a great idea, Norm.
What do you think about it? Now that we've got electronic
voting, why don't we just vote from our offices and vote from
our districts and we wouldn't have to deal with all of these
hassles.''
I said, ``Please carve out a couple of hours so I come in
and persuade you as to why that's an awful idea. But I am
afraid many of your colleagues would jump at the notion of
having the convenience of being able to do their business from
back home, or do their business from somewhere else, or avoid
all of the hassles that are involved in coming to Washington,
going back and forth to vote and so on.''
And this is going to become a bigger problem because, as
Steve Frantzich suggests, the technology is moving at a rapid
pace. It's probably going to be only a matter of 3 or 4 or 5
years before we have holographic images replacing even the
videoconferencing; and the drumbeat from outside and inside to
take these technological tools and telecommute, in effect, will
be very, very strong. So we have to build in not just a set of
regular safeguards, but fire wall upon fire wall upon fire wall
to make sure that if, under the most dire of circumstances, you
need to have the ability for just a short period of time,
perhaps even to declare war, and you are scattered or you are
quarantined and you can't convene at any individual place, that
it is absolutely limited to that.
That means, among other things, that we have to consider
what threshold triggers such an emergency, who decides when
that threshold is met; and especially under a set of
circumstances where the leaders might not be available, might
not be alive or might not be able to communicate with others.
This requires a good deal of thought and effort.
All of that, including how you would change the rules to
make this possible, whether indeed it is constitutional--and I
think, with Don, that this is of dubious constitutionality, if
we actually have an E-Congress, throwing out all of the norms
and the framers' ideas of what a deliberative body is, to vote
and to do the other people's business. But even if we do, we
have got to work through all kinds of nuances.
Let me note that very shortly the American Enterprise
Institute and the Brookings Institution will put together a
blue ribbon commission to deal with the issues of the
continuity of governance that includes the Congress, the
Supreme Court and presidential succession to try to work
through some of these issues. We are available, as I am
individually, as Don and Steve and the others are, to assist
you in your part of the task.
I hope, as well, that you will all engage more broadly in
the larger set of issues beyond the jurisdiction of the
committee to deal with all of these scenarios, which we know
range from a suitcase nuclear bomb that, with no notice, could
take out a good part of official Washington to an anthrax or a
smallpox attack that could eliminate a lot of people, create
chaos or quarantine large numbers of people, to a kind of
attack that could put people in burn units and make them
incapacitated for months.
You can't remove them from office, but you want to have a
robust membership of the body; and of course, as we have
suggested, to a set of circumstances where Members are
scattered and may not be able to travel.
Thank you very much.
[The statement of Mr. Ornstein follows:]
Testimony of Norman J. Ornstein, Resident Scholar American Enterprise
Institute
Mr. Chairman and Members of the Committee:
I commend you for your leadership in ensuring the continuity of
Congress after a catastrophic attack. This hearing, as well as your
efforts to improve the security of the Capitol, secure alternative
meeting sites, and develop emergency communications channels, area
testament to this committee's seriousness of purpose and the urgent
task before it. I thank you for the invitation to testify before you
today on the possibility of ``convening'' an e-congress with Members
participating from remote locations. While I strongly support the use
of technology to facilitate remote communication and to preserve and
provide access to information vital for the functioning of Congress, an
e-Congress is not a substitute for the real thing. Communications and
voting from remote locations will not allow for the face-to-face
contact that makes you true ``representatives'' of the people and that
makes Congress the greatest deliberative body in the world.
One can imagine a number of scenarios where it might be difficult
to convene Congress in the traditional sense. There is the possibility
of a biological attack with many members quarantined and unable to come
together for fear of spreading a dangerous infection. Chemical or
conventional attacks might leave many members in hospital beds,
mentally aware, but unable to meet at a central location. An attack on
the Capitol building while members were in their home districts might
destroy the meeting place, and leave members scattered across the
country, unable to travel to Washington or another central location.
After September 11th, all of these scenarios seem possible. It is for
this reason that I strongly support your efforts to secure alternative
meeting places in the Washington area and elsewhere, and to provide
members with secure communications equipment so that they might be in
touch shortly after an attack.
But I stop short of endorsing an e-Congress, defined as members
situated in multiple locations debating, voting, conducting hearings
and markups and doing other official business by email, webcast, or
telephone. Under such a procedure, you as members would not be acting
as representatives in the essential meaning of the term.
Members of Congress must represent the interests of their
constituents while simultaneously interacting with other members to
reconcile interests from throughout the country--all to fashion policy
that promotes the public good. Both sides of this equation are
essential to true representation. That is why members lead ``double
lives,'' spending significant time both among constituents and in the
halls of Congress. No matter how advanced the technology, there is no
substitute for the face-to-face conversations and informal interactions
between members that can build goodwill across party and region, and
that are critical to genuine institutional and individual deliberation.
Likewise, relationships among staff and advocacy by interest groups are
important for the legislative process and would suffer dramatically if
they were conducted remotely rather than face-to-face.
These relationships have the effect of knitting together the
Congress and passing legislation that is broadly acceptable to the
country as a whole. You are not merely 435 autonomous individuals; you
are also important parts of a larger institution. I know of no major
piece of legislation that could (or should) have been passed without
such personal contact. And I cannot envision a bill of even modest
complexity being drafted and voted on by members whose basic contact to
the outside world was a phone or email address.
It is critical for Congress to consider every dire circumstance
that could result from a catastrophic attack on official Washington.
That includes circumstances under which members of Congress are
scattered around the country and unable to travel to convene in
Washington or elsewhere. I commend especially Representative Langevin
for focusing on this problem and grappling with a solution. But I
frankly fear a solution that provides an imprimatur to a remotely-
driven e-Congress that would too easily slide into use in non-
emergencies. Emergency preparations for video conferencing a session of
Congress are worth serious consideration and planning. But even to
consider that alternative is a risk--it must not be done without
ironclad assurances that no such plan could take place except for a
very short period of time under a dire emergency. Never forget that the
precedent set by an e-Congress might undermine the intrinsic
deliberative nature of Congress and its regular workings by encouraging
more indirect forms of legislating.
the continuity of congress
What is most urgent for this body to consider is how to make sure
that the Congress has adequate membership to operate after an attack.
We must plan for alternative meeting sites and alternative methods of
meeting and voting. But it is even more important to ensure that there
would be enough members for Congress to operate at all. It is for this
reason that I have joined with Rep. Baird and others inside and outside
Congress to advocate measures to ensure that Congress can continue to
operate as a constitutional body.
There are two basic problems: the constitutional quorum
requirement, and the possible incapacity of many members of Congress in
a catastrophe. As Don Wolfensberger suggests, it might be possible to
change the rules and redefine the quorum to exclude temporarily
incapacitated members. But I do not believe that such a change would
deal adequately with the problem. If 200 members of the House were
killed and an additional 230 incapacitated by an attack, one might
manipulate the rules to allow the remaining five members to serve as
the House, with three constituting a quorum. Do we really want to have
three members of the House acting to authorize the use of military
force, appropriate funds for disaster relief or defense, or alter
constitutional guarantees of due process to deal with a continuing
terrorist threat?
Thus, while I support Congress taking immediate, interim steps
through enactment of laws and changes in rules to minimize the threat
to governance we now face with contemporary terrorism, I have come
reluctantly to the conclusion that a constitutional amendment is also
appropriate and necessary. Congress needs to create a mechanism for
temporary appointments to ensure its continued functioning in the event
of a catastrophic act.
Drafting an appropriate constitutional amendment, however, is not
easy. Representative Brian Baird and Senator Arlen Specter have drafted
slightly different versions of amendments to address these problems.
Both take effect only when a significant fraction of the members of
Congress have been killed or incapacitated. When such an event occurs,
governors are required to appoint temporary replacements, who can serve
until a special election is held.
I favor the general outlines of such an approach, but I have
crafted an alternative amendment that differs in several significant
ways. My amendment is triggered when a majority of governors determine
that a majority of their state's delegation is either dead or
incapacitated. In the case of a vacancy caused by death, governors
would appoint temporary members to serve until a special election is
held. In the case of incapacitated members, governors would appoint a
temporary representative who would serve until the member recovers,
dies, or until the next general election. In both cases, governors
would appoint a replacement from a list of seven potential successors
drawn up by each individual member.
There are several advantages to this approach. First, it
decentralizes the trigger mechanism and moves it out of Washington, an
important consideration if our capital is the target of an attack.
Second, because twenty-six governors would have to make a similar
determination, it removes the power to trigger temporary appointments
from one hand and ensures that no abuse of power for political or other
purposes can occur. Third, it makes it clear that any member who is
incapacitated and recovers can resume his or her seat immediately.
Fourth, it deals with the problem of governors appointing temporary
members who are antagonistic to the views of the deceased or
incapacitated member by requiring the governor to appoint from a list
of successors designated by the individual member. A number of states
have emergency procedures to this effect. I have attached a copy of an
amendment along these lines.
Fortunately, a growing number of people are focusing attention
around the continuity of Congress. In January, I convened a working
group of constitutional, congressional and legal scholars, including
Don Wolfensberger, to discuss these issues and come up with a menu of
alternatives. Not all agreed with my approach of a detailed
constitutional amendment, but there was consensus that the question of
the continuity of Congress was one of the most serious facing our
republic. We have created a webpage that details many of the proposals,
articles and opinion pages on the subject: www.aeipoliticalcorner.org/
continuity.htm.
I am encouraged by the committee's attention to these difficult
questions. I hope that the committee will continue to explore ways in
which technology might assist the Congress in the aftermath of a
terrorist attack, and that it will find answers short of a move to an
e-Congress. And I hope that you will also consider measures to ensure
the constitutional viability of Congress as an institution. We owe it
to the victims of 9/11 and all Americans to keep our institutions
strong in the face of those who would seek to destroy our way of life.
The Chairman. I appreciate your testimony.
I shared Lincoln County in Ohio with John Kasich; he had
half the county. We talked about that idea of his, which I
didn't support, but I did tell John a special exception, it
would have been good to keep him back there and we come out
here. You can tell John I said that.
We will go on to the final witness, Dr. Thibadeau.
STATEMENT OF ROBERT THIBADEAU, PH.D., DIRECTOR OF SECURITY
ARCHITECTURES, SEAGATE TECHNOLOGIES, INC., PITTSBURGH, PA
Mr. Thibadeau. Mr. Chairman, members of the committee,
thank you for the opportunity to testify before you today.
The last time I was in Washington, I flew in on the same
flight, September 11. I spent the afternoon walking--I was
giving a talk at the J.W. Marriott. We were locked down the
entire morning. I got to walk this whole area with nobody in
it. Finally, the J.W. Marriott put me up, and I got to watch
the Pentagon burn.
In this statement I will enumerate the principal technical
issues that arise in considering a distributed Congress. Any
change to the way Congress functions can have risk, but change,
as we know, is also inevitable.
In considering how to conduct congressional operations in
emergency situations, we should not look at available
technologies first, because this is apt to create an awkward
and perhaps unusable patchwork of solutions. The preferred
approach is to analyze the deliberative and decision-making
processes that we wish to achieve and then identify the
necessary and sufficient technical means to achieve these ends.
Can we define in precise terms the model of communications
necessary for the Congress to deliberate and decide? The model
needs to specify the ebb and flow of human interactions, the
rules and timing of meetings and authority structures. It also
needs to specify all the modalities of communication needed,
including textual, documentary, audio and visual in the context
where everyone finds the communication natural and appropriate.
Suppose we resolved these structural issues. What about
information security? For any communication we can measure
security against six considerations. They are called integrity,
privacy, authentication, authorization, audit and availability.
For example, if we just consider the security of the
communication between two Members of Congress, we can state, is
the integrity of the communication preserved and not tampered
with? Is the communication hidden from all those who are not
authorized to receive it? Are the parties to the communication
actually the people they pretend to be? Is this really this
particular Member of Congress? Is this party to the
communication authorized to be a party to the communication?
This may not seem like much if we are talking about a
communication between two Members, but what about authorizing
all Republicans to a caucus, or all committee members to a
meeting? Is there a record of the communication that can be
consulted if a violation of security is suspected? Many of the
most damaging attacks against security are covert attacks that
are revealed through forensic analysis of logs and audits. Is
the timeliness of the communication protected against denial of
service attacks or even simply system failures?
We can note that simply creating artificial delays can
easily disrupt human communications. Message integrity,
privacy, authentication, authorization, audit and availability
need to be addressed for any part of the communication system,
and the systems needed to achieve a viable user interface. So,
for example, during a vote it is necessary to determine that
all votes are correct, that they are anonymized or hidden when
they need to be, as with voice votes; that they are coming from
whom they seem to be coming from; that they are all authorized;
that a record is kept in case of suspected security failure;
and that the votes can be executed and completed in a timely
fashion.
There are other issues that I would term ``special
issues.'' I will take a few of these in turn. How do we
authenticate a Member of Congress? This turns out to be a very
interesting problem. We may have a Congressman log in, we may
use voice recognition or an iris scanner to identify that this
is truly the Congressman.
But we may need constant authentication. Suppose an
attacker knocks the Congressman out after the Congressman logs
in; now the attacker can pretend to be the Congressman. Since a
Congressman can vote, how do we know when the Congressman is
just absent versus when he has been incapacitated in a fashion
that allows a secondary authority to vote in his stead? We need
to both authenticate his constant presence and authenticate the
nature of his absence.
How does the public play a role? Clearly, even the Congress
today is concerned about misuses of public access, access that
can distort proven deliberative processes. How can the public
have input if the Members and staff are at locations where
physical access is not possible? This is an issue needing
serious study.
Finally, let us bring up perhaps one of the most
interesting of the special issues. Compromising negotiation as
often as not involves a clear understanding of emotional
commitments. How do we carry the fair fight off the Hill and
into a distributed framework? This special issue really
represents but one of a family of special human issues that
greatly facilitate the processes of Congress. It is here, I
believe, that we are most likely to find alternate human
strategies that are compatible with the technical
infrastructure.
There are many ways to signify that one is angry, for
example. The ways one may use in daily person-to-person contact
may be different from those employed on the Internet.
This brings us in our analysis to the issue of whether we
should seek perfect mimicry of congressional process or simply
mimicry of the legislative and other results of a distributed
Congress. We know that the only people who can judge the
efficacy of a geographically distributed emergency system are
the participants in it. Even after we think we have the
technical issues resolved through such modeling and analysis as
I have described, there should be the expectation of practice
runs which will refine the process and eliminate the inevitable
oversights and errors.
This is my statement. I have tried to provide a simple
method for enumerating the issues in developing a
geographically distributed Congress that can nevertheless
function as a Congress.
I am available to take any questions. Thank you.
[The statement of Mr. Thibadeau follows:]
Statement of Robert Thibadeau, Ph.D., Director of Security
Architectures, Seagate Technologies, Inc., Pittsburg, PA
The House of Representatives or other deliberative lawmaking bodies
may find it important to function during times when the voting members
and supporting staff are geographically distributed. The purpose of
this statement is to try to identify the principal technical issues
that need to be effectively addressed in order to enable distributed
deliberation and decision by the entire congressional membership.
The best approach to this problem is clearly not to look at
available technologies first. If we look at communications technologies
first we are apt to create an awkward, and perhaps unusable, patchwork
of solutions. The preferred approach is to analyze the deliberative and
decision-making processes that we wish to achieve, and then identify
the necessary and sufficient technical means to achieve these ends.
This brings us to the first issue:
1. Should we attempt to mimic the deliberative and decision-making
processes as they exist in the current congressional context, or should
we develop a separate set of processes more suited to the circumstances
of distributed action?
There is no easy answer to this question. It is almost certainly
true that if we make any physical change to the geographical context of
congressional processes, the processes themselves will change. As a
matter of practice, it will be impossible to perfectly mimic all forms
of human interaction that take place in congress that can influence
collective decision making. Trying to mimic may well be the wrong goal.
A better goal may be to achieve outcomes that members feel comfortable
would be the same outcomes achieved if the membership were meeting in
normal congress. The telecommunications and computing tools needed to
achieve this effect of natural outcomes may well not at all mimic the
ways in which the membership interacts on congressional hill.
However, there are certain basics of what it means to be in
congress that allow us to confidently define other issues that will
most certainly need to be addressed. So, let's just take the dictionary
of congress as a ``formal assembly of representatives to discuss
problems and legislate.'' This congress can be characterized
scientifically as a dynamic matrix of communications among members,
staff, and public. The communication is not constant, but ebbs and
flows. A congress naturally incorporates provision for time to study
and reflect, and for many kinds of special interactions in groups that
precede the full congress assembled.
For those of us who have had many years of daily experience with
computers, the technology of chat, as may be found in the original
Internet Relay Chat (IRC Chat), or AOL Instant Messenger, provides a
natural way to permit members, staff, and public, to both publicly and
privately deliberate. The Blackberry mobile email devices in use by
many legislators also provides chat-like interactions among members,
staff, and public. But, while Chat has many of the correct properties
of congressional interactions, it is only for textual input and does
not have easy means for audio-visual interactions. Chat may seem
appropriate, but this is letting available technology drive our
thinking about congressional processes. We can't really evaluate
whether we want to change congressional processes until we can
enumerate them. So, the second issue that we can identify is this:
2. Can we define, in precise terms, the model of communications
necessary for the congress to deliberate and decide?
Clearly, this model of communications needs to describe the ebb and
flow of private, semi-public, and public deliberations and decision-
making. It needs to specify rules, timing, meeting, and authority. It
also needs to specify all modalities of communication needed including
textual, documentary, audio, visual, and perhaps others (such as
gestural) in a context where everyone finds the communication natural
and appropriate.
We know that there will be certain technical limits. For example,
it would be impractical to have 435 live talking heads on a screen,
first because that many talking heads cannot be put on a screen, second
because it would lead to incomprehensible jabber, and third because the
bandwidth limitations of our telecommunications infrastructure simply
make 435 live talking heads impossible. Of course, it is possible to
have all 435 Members on line simultaneously, just not in live video.
This brings us to a third issue:
3. Given a desirable model of communications, how do we technically
accomplish this with a natural, transparent, user interface?
So, we may, for instance, find that instead of 435 live talking
heads, a given member of congress may choose to watch the Speaker's
dais and follow one conversation at a time with only a few participants
on screen at any given moment in time. Staff may track other events
occurring in parallel or certain events may be stored for replay.
Priority interrupts may be possible by senior members needing to
intervene in the interest of timely decision making.
Supposing that we resolved all these issues to congressional
satisfaction, many other issues still remain. Many of these involve
information security. There is a fairly well understood technology
associated with security. Consider any given security problem, we can
measure security against six considerations: integrity, privacy,
authentication, authorization, audit, and availability. For example, if
we consider the security of the communication between two members of
congress, we uncover new issues:
(a) Integrity: Is the integrity of the communication preserved and
not tampered with?
(b) Privacy: Is the communication hidden from all those who are not
authorized to receive it?
(c) Authentication: Are the parties to the communication actually
the people who they pretend to be. Is this really this particular
member of congress?
(d) Authorization: Is this party to the communication authorized to
be a party to the communication? This may not seem like much of we are
just talking about two individual members of congress, but what about
authorizing all democrats to a caucus, or all committee members to a
meeting?
(e) Audit: It there a record of the communication that may need to
be consulted if a violation of security is suspected but not detected
at the time of the violation. We may note that many of the most
damaging attacks against security are covert attacks that can only be
revealed through forensic analysis of logs and audits.
(f) Availability: Is the timeliness of the communication protected
against denial of service attacks or, even, simple system failures. We
can note that human communication can be easily disrupted by simply
creating artificial delays.
These six issues need to be addressed for any aspect of the
security problems that can be identified in the dynamic communications
model and the systems needed to achieve a viable user interface. So,
for example, during a vote it is necessary to determine that all votes
are correct, they are anonymized or hidden (as with voice votes) when
they need to be, they are coming from who they seem to be coming from,
they are all authorized, a record is kept in case of suspected security
failure, and the votes can be executed and completed in a timely
fashion.
We can also raise these six issues for any component of any
particular process. So, for example, we can simply examine the digital
link between two locations and confirm that the integrity of the link
is not compromised, that the information is hidden from anyone who does
not have a right to see it, that end points of the digital links are
indeed the end points that they pretend to be, that the communication
along the link is authorized, that it is audited, and that it is
available at all times required by the dynamic communications model and
the user interfaces.
So, the above six security issues really multiply into quite a
number of issues because of all the types of communications
necessitated by the dynamic communications model and the user
interfaces. There is no reason to enumerate all these types except to
raise this enumeration, itself as an issue:
4. Can we enumerate all the security problems associated with the
dynamic communications model and the user interfaces?
The answer is that we can probably do this. However, it is not a
simple matter. One can take a seemingly simple act, like a single email
message, and analyze this down through a very large number of potential
security problems. For example, many people don't realize how easy it
is to spoof an email server or to sniff email. It is also possible to
create a `man-in-the-middle' that can alter the email message in ways
meant to change behavior. The integrity of seemingly instant actions
can also be breached by system operators. How do people know that I've
unplugged five Members of Congress just before a vote? The practical
method to enumerate the security problems is to enumerate or identify
only those security problems that are suggested by risk analysis to be
worth analyzing. The risk is ultimately to a breakdown of the
congressional decision making itself, but minor risks, such as the risk
of a brief delay in email delivery, is not worth mentioning.
There are some other issues that I would term ``special issues.'' I
will take a few of these in turn:
5. How do we authenticate a member of congress?
This turns out to be a very interesting problem. The simplest
notion of authentication is that the member of congress logs in with
his username and password. But we know that someone else may guess a
password. We may require, then, that the member of congress use a
physical, unique token, such as a smart card, along with a password, to
authenticate himself as being the actual congressman in question.
Finally, we may go beyond what the congressman has and what he knows,
to what he is. We may use a fingerprint scanner, voice recognition, or
an iris scanner to identify that this is truly the congressman in
question.
But there is more to authenticating the congressman that just this.
In a deliberative, interactive process we may wish to constantly know
that this is really the congressman. For example, suppose an attacker
knocks the congressman out after the congressman logs in, and now the
attacker can appear to be the congressman. The authentication may need
to be continuous. This special issue of authentication can become quite
important.
But the special issues of authentication do not end with this.
Since a congressman can vote, how do we know when the congressman is
`just absent' versus if he has been incapacitated in a fashion that
allows a secondary authority to vote in his stead? We need to both
authenticate his presence and authenticate the nature of his absence.
This would also be true of staff. Indeed, authenticating absence is at
the root of much trust among members and also in establishing rights.
6. How does the public play a role?
The dynamic communications model will need to have a role for
public input and public inspection of both process and decisions.
Clearly, even the congress assembled on the hill today are concerned
about misuses of public access--access that can distort proven
deliberative processes. How can the public have input if the Members
and staff are at locations where physical access is not possible? What
kind of feedback is needed? Perhaps all that is needed is that the
public can see the summaries of their input so that they know that the
congress is taking note of the public debate. This is an issue needing
serious study.
It also brings us to still another very interesting special issue:
7. How can we confirm that a congressman has actually reviewed the
material we think, or hope, he has reviewed?
If we simply look at the technical communications model, it may not
be sufficient that the mail has arrived in the congressman's inbox. We
may need to know that he has read the mail. With public input, we may
want to know that the congressman has at least looked at the summary
statistics. A very effective security attack, which can also be
`socially engineered' by the bad guys, is to create the circumstances
under which a decision maker does not review certain documents or
material key to his deliberation. On the hill, a quick remark or a
glance can confirm that someone has read a document in question. In a
geographically distributed system, there may need to be other methods.
Ideally these other methods will be well engineered for ease of use and
also protect privacy where appropriate.
Finally, let us bring up perhaps one of the most interesting of the
special issues. This is the one that revolves around emotion:
8. Compromise and negotiation as often as not involves a clear
understanding of emotional commitments. How do we carry `the fair
fight' off the hill, and into a distributed framework?
This special issue really represents but one of a family of
`special human issues' that greatly facilitate the process of congress.
It is also here that I believe we are most likely to find alternate
human strategies that are compatible with the technical infrastructure.
There are many ways to signify that one is mad, for example. The ways
one may use in daily person-to-person contact may be different from
those employed over the Internet.
This brings us, in our analysis, full circle to the original issue
of whether we should seek perfect mimicry of process or simply perfect
mimicry of results.
Even though this has not been a discussion of particular
technologies, I believe it is important to emphasize that we do know
something about the characteristics of the technologies that will go
into resolving all these issues. The most important characteristic is
that the solutions will involve telecommunications and computing, and
that the solutions cannot simply be software solutions. We know, for
example, that any purely software solution will need some special
component hardware to harden the security and protect member privacy.
We also know that the only people who can actually judge the
efficacy of a geographically distributed emergency system are the
participants in it. Even after we think we have the issues resolved,
there should be the expectation of practice runs, which will refine the
process and eliminate oversights and errors.
This, then, is my statement. I have tried to a provide a simple
method for enumerating the issues in developing a geographically
distributed congress that can nevertheless function as a congress
assembled as dictated by our constitution.
The Chairman. I want to thank you for your testimony. I
have questions and other Members will have some questions.
I have a question I guess I will throw out there
generically for those who would be very skeptical or opposed to
even embarking on an E-Congress in the event of an emergency.
I wonder if you can go through every scenario and create
every fire wall, which I agree should be done, and you have two
or three other different locations, one in the western part of
the United States, one in the Midwest, one in the East. You
have actually prepared--we have prepared how Members would be
picked up, if they were back home, by helicopter or
transporter; or we would have a certain window to get to one of
these locations, or--I think maybe Don mentioned this--you
would have one Congress possibly, let's say, out in California
and the other here in Washington or some other location, they
would teleconference the two. I think that was suggested.
Having said that, if you build every fire wall possible,
but you have to still take an account of something that is so
catastrophic--you can't travel, smallpox or whatever--would you
then in the last case scenario think we should embark on an E-
Congress? Or should it just not be considered?
Don.
Mr. Wolfsenberger. I think you raise a very interesting
and, not a probable but a possible scenario, and that is that
if traffic is snarled, airports are shut down, highways are not
moving or anything, how do you go about reconvening Congress?
And I think either you learn to live with a slight delay until
you can reconvene Members together, or you have this fall-back
that you are looking at of allowing some type of rudimentary
communication to take place, or even formal voting to take
place, from individual Members' district offices or homes or
whatever.
I am just very leery of that even in that extreme event. I
think that it might be worth waiting a week until things sort
out a bit.
I don't think, for instance, if we are attacked, that you
need a declaration of war to fight back. If you are attacked,
you are at war. So I don't think that is a big deal. I don't
think that you are going to run out of money in the first week
or so.
I understand Norm's concern about having some type of
martial law in place until Congress can get back on its feet
and start legislating. This is what we had in the Civil War. It
broke out in April when Congress was not in session; Lincoln
brought them back July 4, I think it was. But in the meantime
there was a type of martial law. But Congress then quickly
retroactively authorized the things that Lincoln had done
because he realized that he had gone beyond constitutional
bounds. He asked Congress to authorize the things that he had
done and they did so.
So I guess I am not as uptight about those things as maybe
I should be. I don't know.
The Chairman. I had a fascinating conversation with
Chairman Dreier last week. We were talking over on the floor
and just went through scenarios, and you try to reason out how
many would you have to have, other sites for Congress, if you
didn't have any Congressmen. We went through just about every
scenario that could happen.
I do agree generically that, in my opinion, it would have
to be just of the rarest situations; and you would have to
look, as all the panelists have raised it, at all the other
issues--who convenes it, where is the involvement with the
leader and the Speaker. There are a lot of issues.
Technologically, probably for the most part, it is workable
unless the satellites go down and then everybody is out of
communication. And there is nothing you can do about that once
that happens. I do appreciate the comments on that.
Dr. Ornstein.
Mr. Ornstein. I would probably be a little bit more open to
it than Don is in the end, in the worst of worse case
scenarios. Mr. Thibadeau has raised an issue that I didn't want
to bring up, but I think is an important one, and it is one
that I have used frequently as I have sort of railed against
the great trend towards vote by mail and remote voting more
broadly in the electorate, which I think is a terrible,
terrible trend that we have embarked on, partly because of the
great capacity for corruption which we have seen play out in
many places, that once you lose the sanctity of the voting
booth, the zone of privacy, anything can happen.
Here we know we have had at least a couple of examples of
people misusing their voting cards even for electronic voting,
that having this kind of process where you are voting from
remote locations and making sure you really do have those
individuals is no easy task.
Having said that, if you do embark down this road--and
maybe we need to--it is not just having fire walls. I think it
is building in a piece of legislation or a set of rules that
create several other triggers, options that have to be explored
or ruled out first before this ever happens.
Among them should be having not just one or two, but maybe
even five or six or seven sites around the country, if Members
are back in their districts where it might much more easily be
possible for them to convene someplace 100 miles away. And then
you could link them together, so that at least you have a large
number of people together and you can see physically who is
voting or who is acting. That is a much better possibility.
But before we ever get to that point--and I am worried
about martial law and I am worried about the symbol--I want the
Congress--immediately or as soon as we can possibly convene it,
I want the symbol for America and I want the decisions being
made by a large number of Members of Congress. I want to have
replacements ready if necessary. I want to take into account
all of those contingencies.
But if you are going to do this, it's not just saying it is
only used under extreme circumstances, but you exhaust every
other possible way of having a face-to-face, deliberative body
before this is ever triggered. And then who triggers it?
Probably you want to put this in the hands of leaders, if there
are leaders, so you have got people who presumptively care
about the integrity of the institution and may even want to
protect Members from themselves, in this case, from wanting to
do it in a convenient way.
The Chairman. You have raised another issue. Something
happens out here and something happens to the leaders, the two
main leaders. They can't get to D.C. How do you elect leaders?
Do you sit without them? It goes next in line? Those are all,
again, issues.
What happened--and Steny makes a great point, angst was
beginning with the Members and with what happened on September
11 having gone on longer, I think then the raging debate in
this country--and it had gone on several days--was the fact
that you didn't have a Congress, and you had one person and/or
four or five people running the entire Government. And I think
that, in itself, would cause a lot of anxiety in the United
States where the citizens are used to a checks-and-balance
system.
Mr. Ornstein. Let me just note, if I may, Mr. Chairman,
that the shadow government that the President, to use that
phrase loosely, has put into place is a commendable idea to
make sure that Cabinet offices can be kept running in the event
of some real catastrophe hitting Washington, so that you have
got somebody in the official line who can provide civilian
leadership in the Defense Department, get the Social Security
checks out, keep the CDC running and so on.
But we have a problem with Presidential succession now that
isn't just solved by having a Cabinet member leave the Capitol
when the State of the Union message takes place. All the people
in line of succession for the Presidency are Washington-based
figures. This is another area that we need to revisit sometime
along the way to make sure we have got some plans in place
there.
There are plenty of times when all of those people--the
Cabinet, the President, the Vice President and the Speaker of
the House and the President Pro Tem of the Senate are here in
Washington.
Mr. Hoyer. The focus of Mr. Langevin's bill and really what
we are talking about is the technology of how we do this. What
you have spoken to, many of you, is the concern--Don, you
particularly, and David Dreier--of whether we ought to do this;
and if we do do it, how do we limit it to a very short period
of time and the exigency that there is no other way to do it.
There are obviously some pretty profound questions here raised
by Mr. Baird's bill and by the technology of remote meeting.
Dr. Ornstein, you mentioned the Constitution, whether we
will have to amend the Constitution to provide for that. I will
ask this question and maybe one of you knows the answer.
You referenced, or somebody made reference to a provision
of the United States Code, paragraph 27, where the President
can change the place of meeting of Congress if we have a
biological attack or a plague or quarantine or something of
that nature precluding meeting here, in Washington. Article 1,
Section 5, paragraph 4, of the Constitution says, ``Neither
House, during the session of Congress, shall, without the
Consent of the other, adjourn for more than three days, nor to
any other place than that in which the two Houses shall be
sitting.''
Has there been any discussion about section 27 as it
relates to paragraph 4 of Section 5 of Article I in terms of
what does ``place'' mean? For instance, if we are all around
the country accessing perhaps West Virginia, which may be a
central location for communication, what are the ramifications
of relationship between those two? Are there any? And,
therefore, would a constitutional amendment be necessary? I
think, Norm, you suggest it might be, to allow even for the
contingency of electronic accessing and debate and voting.
Mr. Ornstein. There are some questions, open questions
really, about what ``place'' means, whether it means the
physical building of the Capitol, the seat of government in
Washington itself.
I think, actually, that section 27, nobody has challenged
it, but it could be challenged if somebody had standing in
terms of whether in fact it would be constitutional for the
President to basically say, you can meet somewhere outside of
Washington, even in the event of an emergency, without amending
the Constitution.
I do think it may be possible to do something protectively
here, and that would be just simply to have the House and
Senate each pass resolutions providing for the other body to
meet in the event of some emergency, to give them that a priori
approval so that you do not have to worry about the
constitutionality of it if one body is taken out.
But with all of that--and these are questions that have to
be resolved--my conclusion that we need a constitutional
amendment is related to that, but it is not that specifically.
It really is that I fear, even if we do as Don suggests and
change the rules, so that you can change the meaning of a
quorum--and that has its own constitutional issues, but I think
it is doable--I just think that if you ended up where decisions
might have to be made that included picking a new Vice
President, as well as deciding meeting places and so on, that
if you had 430 Members of the House out of commission and five
Members constituting the body and you defined it so that three
could provide a quorum, that is just not adequate. So we need
to make sure that we have a quorum in place by any reasonable
definition so that we can make these kinds of decisions,
including decisions about a meeting place.
That, to me, leads me reluctantly to the conclusion that we
need to have a provision in both Houses for some kind of
temporary replacement membership in the event of death or, even
more particularly, of incapacity.
Mr. Wolfsenberger. Mr. Hoyer, 2 U.S.C. 27, I just learned
this morning from Roman Buhler on your staff, was enacted
initially in 1794; and a little light went on in my head,
because yesterday I was reading about the yellow fever epidemic
that hit Philadelphia, which was then the capital, in August of
1793. The Congress was not meeting then; the entire government,
the executive branch, what there was of it, moved to Germantown
until this epidemic passed.
But it would make sense that the Congress would deal with
that issue when it did come together, I think in December of
1793, and that was probably the basis of that law. Hamilton
almost died of yellow fever in 1793 because he and Jefferson
stayed behind in Philadelphia. Jefferson didn't catch it, but
it was quite a crisis for the government. About, I think, a
tenth of the population of Philadelphia died in that epidemic--
4,000 out of 40,000.
Mr. Hoyer. Let me ask another question that deals perhaps
more broadly with the Baird proposal and how we provide for the
contingencies, but also, in terms of communication, ultimately
what you are communicating and who the Members are.
In some States if a Member of a party dies in a State
legislature, that legislator must be in the interim--if there
is a provision for appointment, as there is in our State--that
legislator must be from the party of the deceased Member. In
the United States Senate, of course, that is not necessary; and
obviously governors are free to appoint whomever they want, and
we have seen party changes on a relatively frequent basis as a
result.
Again, this is related more to the Baird proposal, but it
occurs to me, for instance, not an unreasonable hypothetical
scenario if the Republican Conference meets in the House
Chamber in the Capitol and the Democratic conference meets in
the Cannon Building and a disaster occurs. It could occur that
one party--because they meet in different places for caucus--
one party could be disproportionately eliminated, if you will,
so that if that occurred, you would then have a tremendous
imbalance.
Has there been any thought to perhaps requiring that that
balance be maintained at least in the short term?
Mr. Ornstein. This is something that we have grappled with
a lot, and many of your colleagues expressed concern about
having a governor--when a hearing was held in the Judiciary
Subcommittee on the Constitution, Mr. Nadler expressed concern
that if we had had this awful problem, it would be a governor
of the other party picking a Member to replace him.
Senator Specter has introduced a companion measure to
Representative Baird's, and it requires that an appointment be
of the same party. Mr. Baird didn't put that provision in
because the term ``political party,'' of course, is not
mentioned anywhere in the Constitution, and he didn't want to
be the first one to do so.
I dealt with it another way in a draft amendment that I
prepared that--I might note we have a Web site with all of
these issues discussed and different proposals, including Mr.
Wolfsenberger's and Mr. Baird's and others that are in my
testimony. By using an alternative that Delaware adopted during
the Cold War--and many States adopted proposals to deal with a
catastrophe, or potential catastrophe, during the Cold War--
what Delaware has done is, it enables the members of their
legislature to designate in advance no fewer than three and no
more than seven successors in the event of some catastrophe,
and then the governor chooses from that list. To me that is
much better way.
First of all, if you--I don't want to introduce party into
the Constitution. The term ``party'' can be a fairly
meaningless one. A governor can manipulate that obviously to
pick someone who is nominally from a particular party, but it
would be far better to have that kind of a plan. That, I think,
is also a far better way to go than the proposal that former
Speakers Gingrich and Foley have made to just simply have the
Members designate successors who then serve without any kind of
appointment, which has its own constitutional problems.
Mr. Hoyer. Dr. Thibadeau.
Mr. Thibadeau. There has been sort of an assumption that
the technologies would come in here at the right place. I think
the main comment I was trying to make was that the actual
technology for doing this is not known. We don't know what the
technology is, period. There is no question about that.
The right way to approach the technology is to try to build
an analytical model, to try to understand what actually has to
take place, and in that you will get the questions of what are
the Democrats, what are the whole party issues.
But it is a whole; you can't take this out in pieces and
hope to solve one little piece and then the rest of it will
sort of fall together.
I strongly support--I think it was Langevin's--having NIST,
for example, look at this in some detail and then just work it
out to see exactly what the thing would look like. Then, after
you have looked at what it would really look like in detail,
then a lot of these other things sort of start bubbling to the
surface and they become clearer.
Mr. Hoyer. Thank you.
Thank you, Mr. Chairman.
The Chairman. Mr. Doolittle.
Mr. Doolittle. I have a far more pedestrian question for
you gentlemen. Do you think there is any constitutional or
legal problem posed by the Houses of Congress deciding to hold
a session some other place than in Washington?
Mr. Wolfsenberger. I am not a constitutional scholar, but I
think you have to look hard at the clause that we have just
discussed. I think it can be done with the consent of the
Senate. As I say, I am no constitutional expert, but I think
you can do it.
When you think about all the logistics involved in running
the House of Representatives on a daily basis and whether you
transport all that to another place, notwithstanding the
important symbolic value of going to New York, which we are
talking about here, I just think that you could have--I think
it would be much easier to have a ceremonial type of session
convene up there than to try to transplant the entire system to
New York and do actual business.
Mr. Doolittle. Just following up on that, then do I infer
correctly that you see no legal or constitutional problem with
them doing so?
Mr. Wolfsenberger. I don't, no.
Mr. Ornstein. You can't convene, I think, other than a
ceremonial session just at whim. You are going to have to get a
resolution from the other House approving it. If you are
actually going to meet and do something officially, that has to
be done. It doesn't require an additional constitutional
amendment.
I think it is absolutely terrific that the Speaker is
taking it upon himself to try and pull together some resources
to make sure that there are alternative meeting sites that have
all the accoutrements necessary to have a full meeting of the
House. As we saw with the backlash that developed, even when
the anthrax scare occurred, that happened basically because
Congress had no other place to go at that point. I think the
Speaker and the minority leader made the right call to protect
people. But if you had had another place to go, you could have
gone and done work and nobody would have criticized you. There
was no other place.
You have got to make those plans. In the process of making
those plans, you also have to make sure that you pass the
resolutions in both Houses in advance so that you have the
legal and constitutional authority to conduct those meetings
and actually conduct official business. But then it is doable.
Mr. Doolittle. Back to my question, then--and you addressed
the first part of your comments to it--if the Houses passed a
resolution to go meet in New York or Philadelphia or Kansas,
that would be okay?
Mr. Ornstein. Yes.
Mr. Doolittle. Then may I ask the opinion of the other two
gentlemen?
Mr. Thibadeau. I definitely have no opinion.
Mr. Doolittle. Okay.
The Chairman. Dr. Frantzich.
Mr. Doolittle. Yes, Dr. Frantzich.
Mr. Frantzich. As I listened to this debate, I was reminded
about a number of years ago when there was a question on
whether congressional records were documents when they were in
electronic form. And there were numerous hearings on these. The
lawyers weighed in; it really got down to a question of whether
people of good will could look at a word in the Constitution or
in the rules in a different kind of a way.
Again, I am not a constitutional scholar, but, to me,
``convening'' is a rather wide open kind of a word and doesn't
necessarily mean that all people have to be in the same room at
the same time.
Mr. Doolittle. Okay. Thank you.
I have read in the comments of some of the Members that the
House of Representatives is the greatest deliberative body in
the world. I shudder for the world if that is indeed true.
Perhaps it may well be true, but I would venture a guess that
just about any State legislature on a regular basis is far more
deliberative than either the House or the Senate. At least that
is my experience.
Mr. Wolfsenberger. Could I comment on that?
Mr. Doolittle. Yes.
Mr. Wolfsenberger. You recall reading about Speaker Thomas
Bracket Reed back in the 1890s, someone asked him once, ``Is
the House a deliberative body?'' and he said, ``No, and I thank
God it isn't.'' but I think he was talking about the House
assembled as a whole.
And I think the real deliberation, as Woodrow Wilson noted
in 1885, goes on in the committee rooms. That is where you
really thrash out ideas and alternatives and have your
arguments. The House is just sort of a Congress on public
exhibition, as Wilson put it; but Congress in committee rooms
is Congress at work. The real deliberation, I think, does and
should go on in the committees. You have your debates and sort
of rehash some of the things that went on in the committees on
the floor of the House and the Senate, but that is not as
deliberative as the committee system is.
Mr. Doolittle. I just mention that because I think certain
things have happened, certain reforms and changes have been
made; and the full ramifications of those, it was never
contemplated. I enjoy C-SPAN as much as anybody, but I would
argue C-SPAN dramatically altered the characteristics of debate
in both the House and the Senate, whereas Members now are
basically addressing a national audience directly versus
addressing each other.
It used to be, I think until the middle 1960s, that
committees were not allowed to meet simultaneously while the
House was in session. That remains the rule, I know, in the
California legislature and I would guess in many of the others.
The fact that committees can meet now has basically,
fundamentally altered what goes on on the floor of the House.
We all just have come to accept this.
If we set some kind of a precedent here, on an emergency
basis, of allowing us to remotely conduct the business of
Congress, each of us from a different place, I would be very
concerned about that. That cure might be worse than the illness
we are trying to address.
As others have counseled, my own opinion would be, this
should be very carefully considered and we should be very
deliberate in what it is that we do before we set in motion
something that will have ramifications that we have not
contemplated.
Thank you, Mr. Chairman.
The Chairman. I have one, and I think there are going to be
some votes called, but one other question for Dr. Frantzich and
anybody else who would like to also answer.
You have raised an interesting issue when you talk about
the fact that, if this would progress on, you look at the
technology, you compare what we are doing and we look back and
it would be like an 8-track tape.
Are there computer think tanks that are thinking other
generations about communication that if we didn't proceed with
this, we at least could look at that technological side, the
progressive thinkers with computers?
Mr. Frantzich. I couldn't hear your question. It was a
little garbled in the translation.
The Chairman. Bottom line, you had mentioned about the 8-
track scenario, 8-track tape. What I was wondering is, are
there think tanks that we can look at that are looking at other
generations of communication, so if we did proceed with this,
we would be looking at the top thinkers in the country when it
comes to computers and technology, to look at not just maybe
establishing an E-Congress through an encrypted phone system,
but other things we could look at?
I just wondered if you had suggestions.
Mr. Frantzich. I don't have any particular companies, but I
think that some of the advances that are being made in
electronic classrooms which are trying to simulate human
interaction from remote spots, I think those might be some of
the places to look.
There are some demonstration-type classrooms. I know the
University of Maryland and other places that might give you a
feel for what the technology can do.
Mr. Ornstein. Mr. Chairman, I would make a couple of
suggestions. There are a couple of foundations that have a
strong interest in these issues more broadly, and I think if
the committee contacted the Markle Foundation in New York----
The Chairman. Did you say Markle?
Mr. Ornstein. Markle, M-A-R-K-L-E.
Which is focused around telecommunications issues, but also
democracy, and the Pew Charitable Trust in Philadelphia.
Also, there is a telecommunications program at the Aspen
Institute here in town where you might find a strong
willingness--you would find, I am sure, a strong willingness to
perhaps act to convene a group of people to discuss these
issues, to perhaps help you along, even as the National
Institutes of Standards and Technology perhaps was moving in
this direction as well.
Pew, as you know, has funded the civility retreats that the
House has conducted in the last few years.
The Chairman. Are there any further comments?
Yes?
Mr. Thibadeau. I think that Mr. Ornstein's comments are
correct. One of the things that I would like to sort of
emphasize here is that there are lots of really advanced
technologies and all this other stuff, but there needs to be an
analysis of what actually needs to take place that precedes
going to look at these technologies.
Rather than going and looking at technologies and letting
the technologies drag you, the best thing to do is decide what
it is that you need and then go ask the technologies to deliver
that.
The Chairman. Any other questions?
Mr. Hoyer. Dr. Thibadeau, you have made that point
throughout your presentation. I think it is an excellent point;
I would agree with you 100 percent. I would imagine everybody
does.
But the other thing that I want to make sure that we all
agree on: I agree with David Dreier and with all of you and
with others who have said that the coming together is a
critical component of democracy. I agree with Dr. Ornstein. I
am not a fan of these processes which try to make democracy a
remote, either electronic or mail-type participation at arm's
length. It is anticommunitarian, and I am a communitarian.
Having said that, however, and having adopted David
Dreier's admonition to proceed slowly and with caution, am I
correct that we all agree that there may be a contingency where
this need for electronic connectivity would be necessary? I
certainly agree, and I presume all of you do, that that
contingency ought to be pretty clear to activate it and pretty
severe, in that context.
In other words, nobody, am I correct, is saying that we
ought not to consider this at all because it just wouldn't be
the way to go at all? Am I correct?
Don, why don't we start with you?
Mr. Wolfensberger. I probably expressed that, I guess in
the dire circumstances Mr. Ney mentioned, where you have got no
way to get around and you have got Members stranded in their
districts, you have obviously got to have something available,
that there can be some type of convening orally or by computer
or otherwise to get some work done.
So I think you certainly have to explore that possibility.
Mr. Thibadeau. Another place to look, which just dawned on
me, is the communities on the Internet. I will mention one,
just from personal family experience, is called neopets which
has 30 million children globally on it. They are able to engage
in Congress. They have neo money, they do all the things they
have to do. These are very interesting places to look to see
how large communities of people are actually interacting and
viably, living on it, you can actually see this stuff and it is
kind of interesting to watch that.
Mr. Ornstein. I have misgivings about a lot of this stuff.
The Supreme Court says virtual pornography is okay. I am not
sure that virtual government is something that we really want
to aspire to, in a lot of ways.
But, yes, we have to consider this. And I think frankly it
was frustrating in October, November and December and January
getting many of your colleagues to even pay attention to these
issues at all. It is partly human nature. Nobody wants to
contemplate the possibility of their own demise.
But I think it is incumbent upon you to move
deliberatively, but not all that slowly, and very carefully.
But you have to look at every contingency. You have to look at
every scenario, which are now not nearly as remote as they were
before September 11, in real terms, and develop plans. It is
really your responsibility to do so. I would like to find ways
to make the body more deliberative, on the floor at least.
Mr. Doolittle, let me bring back a pet idea of mine that I
pushed for years, that we tried out just once and then
abandoned, and that is to have real debates on the floor of the
House, almost Oxford-style debates. We actually got it going,
we did a couple and they were too unwieldy because there were
too many Members involved.
But we could actually find ways, I think, to engage this
body in the great national issues in a way that would actually
bring the public in more. But the deliberative process is not
just the debate on the floor, of which we have little in the
House, no doubt. It is a lengthy process, as the framers saw
it, of bringing people together, interacting face-to-face,
informally and formally, seeing the perspectives of people from
completely different areas of the country, from completely
different backgrounds and beginning to understand them and then
slowly building a consensus that develops into policy. That is
what we mean by a deliberative process.
We can all agree that the Senate does not fit as the
greatest deliberative body, maybe not the State legislatures,
may be right there; but the House, in that sense, really is a
great deliberative body because we have the greatest range of
people in the country together and you can learn from each
other. We do less of that than we used to, partly because of
this Tuesday-to-Thursday schedule, I think, and the demands of
fund-raising and other things have made it harder for people to
spend time together, and especially across the aisles. We have
got to find better ways to deal with that.
But the larger point is that we can't abandon what the
framers wanted, but you have got to prepare for contingencies
that nobody ever could have considered in 1789, much less in
1999. That is clear.
The Chairman. You raise a lot of issues, and we--at least
to the process, we really owe a discussion of this thoroughly,
of bringing minds together.
This committee--and I commend the Members and the staff--
was in a situation after September 11 to receive hundreds of
suggestions and ideas, things that we never ever had to think
of. We would have been laughed out of this building on some of
the things that we talked about that we need to do for the
future, in order to keep the people's House going.
But 9/11 caused that. It has changed the way we look at
items. I do think that it is important, this debate.
Mr. Frantzich. I am not quite sure how to jump in in a
teleconference. I have learned that out of sight is kind of out
of mind perhaps. But we all buy insurance, hoping we will never
have to use it. I think being prepared is maybe one of those
pieces of insurance that we might want to buy.
Second, perhaps it would give a terrorist pause to know
that he couldn't bring the U.S. Congress to its knees if we had
a contingency plan that we could use.
The Chairman. Good point.
Mr. Hoyer. Mr. Chairman, I don't know how many people know.
I know all the panelists must know, but obviously had we been
hit, the personnel may not have been available. But what
happened post-September 11 was, the Congress was fully prepared
to act in an alternative site within 6 days.
We could have met, and we could have transmitted what we
were saying in real time and in pictures to the American
public, so that in a very short period of time post-September
11, by the 16th or 17th at least, we would have been able to
convene.
As it happens, it was not necessary that we do so, but the
staff did an extraordinary job. This committee was very
involved in that. We didn't have a contingency plan at that
point in time. It just came together through some very hard
work and good thought.
But I agree with the witnesses who have said that if we
have a contingency plan, it will give people pause to think
that they can accomplish their objectives, although in some
respects what their objective was, at least on September 11, I
think, was more to damage symbols; and they got a bonus, they
damaged substance. For at least a short period of time, air
flight, the markets were shut down, although for an incredibly
short time given the damage that occurred; so we did come back
very, very quickly.
But their effort was symbols. And as Dr. Ornstein pointed
out their targets were probably the greatest symbol of
democracy in the world. We may not be the greatest deliberative
body--although I would differ with my colleague, deliberative
bodies look a lot better far away than they do up close--but
that is the nature of human interaction, I suppose. There is a
song about that, ``From a Distance.''.
The fact is that I think the preparations that we need to
pursue--Doctor, you reiterated, I agree with you, we need to
figure out what we want. I think what we want is the ability of
the people's Representatives, the Senate and the House, to
continue to make decisions notwithstanding the destruction of
physical symbols and a significant number of our body, both in
the very short term, that is, in days and hours, and in the
longer term in this context, weeks and months.
Thank you. Thank you, Mr. Chairman.
The Chairman. I want to thank all the panelists for joining
us.
With that, I would like to ask unanimous consent that staff
be authorized to make technical and conforming changes on all
matters considered by the committee in today's hearing. Without
objection, it is so ordered.
I also ask unanimous consent that Members and witnesses
have 7 legislative days in which to submit material for the
record, and that those statements and materials be entered in
the appropriate place in the record. Without objection, the
material will be so entered.
And having completed the business for today and for this
hearing on E-Congress----
Mr. Hoyer. Mr. Chairman, can we tell Dr. Frantzich, he is
not out of sight? We can see him. He is right in front of us on
the television.
The Chairman [continuing]. This hearing is hereby
adjourned.
[Whereupon, at 11:55 a.m., the committee was adjourned.]