[House Report 108-404]
[From the U.S. Government Publishing Office]
108th Congress Rept. 108-404
HOUSE OF REPRESENTATIVES
2d Session Part 2
======================================================================
CONTINUITY IN REPRESENTATION ACT OF 2004
_______
January 28, 2004.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING AND ADDITIONAL VIEWS
[To accompany H.R. 2844]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2844) to require States to hold special elections to
fill vacancies in the House of Representatives not later than
21 days after the vacancy is announced by the Speaker of the
House of Representatives in extraordinary circumstances, and
for other purposes, having considered the same, reports
favorably thereon with amendments and recommends that the bill
as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 3
Hearings......................................................... 10
Committee Consideration.......................................... 10
Vote of the Committee............................................ 10
Committee Oversight Findings..................................... 11
New Budget Authority and Tax Expenditures........................ 11
Congressional Budget Office Cost Estimate........................ 11
Performance Goals and Objectives................................. 16
Constitutional Authority Statement............................... 16
Section-by-Section Analysis and Discussion....................... 16
Changes in Existing Law Made by the Bill, as Reported............ 16
Markup Transcript................................................ 18
Dissenting Views................................................. 47
Additional Views................................................. 51
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Continuity in Representation Act of
2004''.
SEC. 2. REQUIRING SPECIAL ELECTIONS TO BE HELD TO FILL VACANCIES IN
HOUSE IN EXTRAORDINARY CIRCUMSTANCES.
Section 26 of the Revised Statutes of the United States (2 U.S.C.
8) is amended--
(1) by striking ``The time'' and inserting ``(a) In
General.--Except as provided in subsection (b), the time''; and
(2) by adding at the end the following new subsection:
``(b) Special Rules in Extraordinary Circumstances.--
``(1) In general.--In extraordinary circumstances, the
executive authority of any State in which a vacancy exists in
its representation in the House of Representatives shall issue
a writ of election to fill such vacancy by special election.
``(2) Timing of special election.--A special election held
under this subsection to fill a vacancy shall take place not
later than 45 days after the Speaker of the House of
Representatives announces that the vacancy exists, unless a
regularly scheduled general election for the office involved is
to be held at any time during the 75-day period which begins on
the date of the announcement of the vacancy.
``(3) Nominations by parties.--If a special election is to
be held under this subsection, not later than 10 days after the
Speaker announces that the vacancy exists, the political
parties of the State that are authorized to nominate candidates
by State law may each nominate one candidate to run in the
election.
``(4) Extraordinary circumstances.--
``(A) In general.--In this subsection,
`extraordinary circumstances' occur when the Speaker of
the House of Representatives announces that vacancies
in the representation from the States in the House
exceed 100.
``(B) Judicial review.--If any action is brought
for declaratory or injunctive relief to challenge an
announcement made under subparagraph (A), the following
rules shall apply:
``(i) Not later than 2 days after the
announcement, the action shall be filed in the
United States District Court having
jurisdiction in the district of the Member of
the House of Representatives whose seat has
been announced to be vacant and shall be heard
by a 3-judge court convened pursuant to section
2284 of title 28, United States Code.
``(ii) A copy of the complaint shall be
delivered promptly to the Clerk of the House of
Representatives.
``(iii) A final decision in the action
shall be made within 3 days of the filing of
such action and shall not be reviewable.
``(iv) The executive authority of the State
that contains the district of the Member of the
House of Representatives whose seat has been
announced to be vacant shall have the right to
intervene either in support of or opposition to
the position of a party to the case regarding
the announcement of such vacancy.''.
Amend the title so as to read:
A bill to require States to hold special elections to
fill vacancies in the House of Representatives not later than
45 days after the vacancy is announced by the Speaker of the
House of Representatives in extraordinary circumstances, and
for other purposes.
Purpose and Summary
The ``Continuity in Representation Act of 2003'' provides
for the expedited special election of new Members to fill seats
left vacant in ``extraordinary circumstances.'' ``Extraordinary
circumstances'' occur when the Speaker of the House announces
that vacancies in the representation from the States in the
House exceed 100. Under the bill as reported by the Committee
on House Administration and the Committee on the Judiciary,
when such ``extraordinary circumstances'' occur, a special
election must be called within 45 days, unless a regularly
scheduled general election for the office involved is to be
held within 75 days. Within 10 days of such an announcement by
the Speaker, the political parties of the State that are
authorized to nominate candidates by State law may each
nominate one candidate to run in the election.
Background and Need for the Legislation
H.R. 2844, the ``Continuity in Representation Act of
2003,'' was introduced on July 24, 2003, by House Judiciary
Committee Chairman F. James Sensenbrenner, Jr., House Rules
Committee Chairman David Dreier, Representatives Candice Miller
and Tom Cole (both former chief State election officials),
House Constitution Subcommittee Chairman Steve Chabot, and
Representative Ron Paul. House Judiciary Committee Ranking
Member John Conyers, Jr. and Representative Howard Berman are
co-sponsors of H.R. 2844. It also has the support of Speaker
Hastert.
A. CONSTITUTIONAL ISSUES
The Continuity in Representation Act will protect the
people's right to chosen representation. The uninterrupted
tradition is that only Representatives duly elected by their
local constituents should serve in the House. Indeed, while
some argue that adopting an amendment to the Constitution that
allows for the appointment of replacement Members will deter a
terrorist attack designed to disrupt the functioning of
Congress, the very adoption of such an amendment itself would
strike a fatal blow to what has otherwise always been ``The
People's House.''
The House is rooted in democratic principles, and those
principles must be preserved. James Madison used the strongest
of terms when stating the House must be composed only of those
elected by the people. Madison wrote in Federalist Paper No. 52
that ``As it is essential to liberty that the government in
general should have a common interest with the people, so it is
particularly essential that the [House] should have an
immediate dependence on, and an intimate sympathy with, the
people. Frequent elections are unquestionably the only policy
by which this dependence and sympathy can be effectually
secured.'' \1\ Madison continued: ``Who are to be the electors
of the Federal representatives? Not the rich, more than the
poor; not the learned, more than the ignorant; not the haughty
heirs of distinguished names, more than the humble sons of
obscurity and unpropitious fortune. The electors are to be the
great body of the people of the United States.'' \2\
---------------------------------------------------------------------------
\1\ Federalist No. 52 (Madison), at 327 (Clinton Rossiter ed.,
1961) (emphasis added).
\2\ Federalist No. 57 (Madison), at 351. See also Federalist No. 39
(Madison), at 242, 244 (``The House of Representatives . . . is elected
immediately by the great body of the people . . . The House of
Representatives will derive its powers from the people of America.'');
Federalist No. 57 (Madison), at 351 (``The elective mode of obtaining
rulers is the characteristic policy of republican government.'').
Madison also refers to the ``requisite dependence of the House of
Representatives on their constituents.'' Federalist No. 52 (Madison),
at 328. In Jackson v. Ogilvie, the Seventh Circuit held that `the
people's right to chosen representation is not limited to exercise at a
biennial election, but is a continuing right which is not to be
defeated by death of a Representative once chosen, or other cause of
vacancy.'' 426 F.2d 1333, 1336 n.7a (7th Cir. 1970) (emphasis added)
(quoting M. St. Clair Clarke and David A. Hall, Cases of Contested
Elections (Washington, D.C. 1834), the Case of John Hoge of
Pennsylvania, at 139).
---------------------------------------------------------------------------
Madison explicitly rejected the proposition that the
appointment of Members authorized by Congressional legislation
is compatible with the American Republic. In Federalist No. 52,
Madison stated ``The definition of the right of suffrage is
very justly regarded as a fundamental article of republican
government. It was incumbent on the [Constitutional]
convention, therefore, to define and establish this right in
the Constitution. To have left it open for the occasional
regulation of the Congress, would have been improper for the
reason just mentioned.'' \3\ Further, in his ``Speech in the
Federal Convention on Suffrage,'' Madison stated, ``The right
of suffrage is certainly one of the fundamental articles of
republican Government, and ought not to be regulated by the
Legislature. A gradual abridgement of this right has been the
mode in which Aristocracies have been built on the ruins of
popular forms.'' \4\ The very alternative offered by some
opponents of H.R. 2844--a constitutional amendment to allow
Congress to require that vacant House seats be filled by
appointment--was explicitly rejected by the Founders as
antithetical to republican government.
---------------------------------------------------------------------------
\3\ Federalist No. 52 (Madison) at 326 (Clinton Rossiter ed., 1961)
(emphasis added).
\4\ James Madison, ``Speech in the Federal Convention on
Suffrage,'' (August 7, 1787) reprinted in James Madison: Writings (Jack
N. Rakove, ed. 1999) at 132.
---------------------------------------------------------------------------
Further, during the height of the Cold War, when the nation
feared a potential nuclear or biological attack by the Soviet
Union on the entire land mass of the United States, the Senate
three times passed constitutional amendments similar to those
some are proposing currently, and the House chose not to act on
any of them.\5\ Demonstrating that this is not a partisan
issue, but one concerning the legitimacy of all Members of the
House and of the legislation it passes, the House of
Representatives rejected such Senate-passed amendments both
when it was controlled by Republicans in the 83rd Congress (221
Republicans, 213 Democrats), and when it was controlled by
Democrats in the 84th Congress (232 Democrats, 203 Republicans)
and in the 87th Congress (262 Democrats, 175 Republicans).
---------------------------------------------------------------------------
\5\ See Sula P. Richardson, ``House Vacancies: Proposed
Constitutional Amendments for Filling Them Due to National Emergency''
CRS Report for Congress (RL-32031) at 5.
---------------------------------------------------------------------------
H.R. 2844 would provide for, among other things, expedited
special elections in the States to fill vacant House seats in
extraordinary emergency situations. Congress has the clear
constitutional authority to enact such legislation under
article I, section 4, clause 1 of the Constitution, which
states that ``The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations . . .'' \6\ In
enacting such legislation, Congress would uphold the Founders'
understanding of what is essential to democracy, maintain the
uninterrupted tradition that only duly elected Members serve in
the House of Representatives, and preserve the American
people's right to their chosen Representatives. Consistent with
the right to chosen representation, the Founders explicitly
considered Congress's power to require expedited special
elections as the solution to potential discontinuity in
government in emergency situations. As Alexander Hamilton wrote
in Federalist Paper No. 59, in discussing article I, section 4,
clause 1, ``[The Constitutional Convention has] reserved to the
national authority a right to interpose, whenever extraordinary
circumstances might render that interposition necessary to its
safety. Nothing can be more evident, than that an exclusive
power of regulating elections for the national government, in
the hands of the State legislatures, would leave the existence
of the Union entirely at their mercy. They could at any moment
annihilate it, by neglecting to provide for the choice of
persons to administer its affairs.'' \7\
---------------------------------------------------------------------------
\6\ In Smiley v. Holm, 285 U.S. 355 (1932), the Supreme Court held
that ``[i]n exercising this power, the Congress may supplement . . .
state regulations or may substitute its own . . . It has a general
supervisory power over the whole subject.'' Id. at 366-67 (quotations
and citations omitted). The Supreme Court described ``the whole
subject'' over which Congress has general supervisory power as follows:
``The subject-matter is the `times, places and manner of holding
elections for senators and representatives.' It cannot be doubted that
these comprehensive words embrace authority to provide a complete code
for congressional elections, not only as to times and places, but in
relation to notices, registration, supervision of voting, protection of
voters, prevention of fraud and corrupt practices, counting of votes,
duties of inspectors and canvassers, and making and publication of
election returns.'' Id. at 366. Also, the House alone has the authority
to judge the elections of its own Members. Article I, section 5, clause
1 of the Constitution provides that ``Each House shall be the Judge of
the Elections, Returns and Qualifications of its own Members . . .''.
\7\ Federalist No. 59 (Hamilton) at 363 (Clinton Rossiter ed.,
1961) (emphasis added). Hamilton continued: ``The natural order of the
subject leads us to consider, in this place, that provision of the
Constitution which authorizes the national legislature to regulate, in
the last resort, the election of its own members . . . I am greatly
mistaken, notwithstanding, if there be any article in the whole plan
more completely defensible than this. Its propriety rests upon the
evidence of this plain proposition, that every government ought to
contain in itself the means of its own preservation . . . It will not
be alleged, that an election law could have been framed and inserted in
the Constitution, which would have been always applicable to every
probable change in the situation of the country; and it will therefore
not be denied, that a discretionary power over elections ought to exist
somewhere . . .'' Id. at 361-362 (emphasis in original).
---------------------------------------------------------------------------
While some imagine horrific scenarios regarding
catastrophic attacks on the Nation's capital, more inspiring
scenarios can be imagined that resonate more closely with the
American spirit. Following such an attack, millions of people
around the country might fill schools, gymnasiums, churches,
and meeting halls, and freely exercise, in the wake of terrible
actions by vicious haters of democracy, their right to chosen
representation--a right that has survived uninterrupted
throughout the history of the United States. When terrorists
attacked on September 11, 2001, it was an elected--not an
appointed--Congress that acted in its wake, and the legislation
passed by that elected Congress has a legitimacy that
legislation passed by an appointed Congress would not have had.
While some argue that Congress must immediately reconstitute
itself in order to check a President imposing martial law, the
President's potential abuse of power is already subject to
check by the impeachment process, which, as any President will
know, could be initiated by both a depleted or a later
repopulated House of Representatives.
Another proposed solution is a constitutional amendment
that grants Congress blanket authority to legislate how Members
would come to serve in this body. That provides no solution,
but only potential mischief and the prospect of political
gamesmanship by future Congresses. Further, if the statute
enacted by Congress under such an amendment allows appointed
Members to run in the special elections following their
appointment, they would be distracted by campaign politics at
the very moment they are expected to be focusing on legislative
duties. If, on the other hand, such legislation provided that
appointed Members could not run in such special elections, they
would have no institutional connection to the electorate's
desires. Either way, legislation passed by an appointed House
that did not comport with the people's will would have to be
repealed by a later elected House, leading to further
discontinuity at the very time continuity is most important. A
time following a catastrophic attack in this country would be
one of the most significant times in our history, and that is
precisely not the time, if ever there is one, for the laws to
be written by appointed Members who have no authority from, nor
responsibility to, the people.
H.R. 2844 is founded on clear, existing constitutional
authority, and it preserves the vital, time-tested
constitutional value of elected representation that has made
this country the most successful experiment in self-governance
the world has ever known.
B. ELECTION ISSUES
While some claim it would be too burdensome for special
elections to be required within 45 days of a catastrophic
attack, several State laws already provide for very quick
special elections in normal circumstances, let alone emergency
circumstances. For example, Minnesota law provides that a
special election must be held no more than 28 days after the
governor issues the writ of election, and the governor must
issue the writ of election no more than 5 days after the
vacancy occurs if Congress is in session, thereby requiring
special election within 33 days of a vacancy occurring in
ordinary circumstances.\8\ Wyoming law provides that special
elections to fill vacancies must be held within 45 days in
ordinary circumstances.\9\ Further, New York \10\ law provides
that special elections may be held within as little as 30 days
and no later than 40 days after the governor issues a writ of
election to fill a vacancy. Georgia \11\ law provides that
special elections to fill vacancies may be held within as
little as 40 days in ordinary circumstances, and Iowa law \12\
provides that special elections to fill vacancies may be held
within as little as 45 days in ordinary circumstances.\13\ R.
Doug Lewis, Executive Director of the Election Center--a non-
partisan organizations representing the nation's election
officials--has stated that ``many who are looking at this issue
do not want to break the tradition of having House members
being elected rather than being appointed--even for a short
duration. We have no quarrel with that viewpoint.'' \14\
Further, Mr. Lewis has also stated that ``it appears that
elections administrators [from combined responses nationwide]
feel that they can conduct an election within as few as 45
days.'' \15\ In any case, Mr. Lewis stated that ``Election
administrators . . . will perform well in any national
emergency.'' \16\
---------------------------------------------------------------------------
\8\ See Minn. Stat. Sec. 204D.19 (``Special election when the
congress or legislature will be in session . . . when a vacancy occurs
and the congress or legislature will be in session so that the
individual elected as provided by this section could take office and
exercise the duties of the office immediately upon election, the
governor shall issue within 5 days after the vacancy occurs a writ
calling for a special election. The special election shall be held as
soon as possible . . . but in no event more than 28 days after the
issuance of the writ.'').
\9\ See Wyo. Stat. Sec. 22-18-105 (``If the vacancy in the office
of representative in congress occurs within six (6) months prior to the
next general election, the vacancy shall be filled at the general
election. Otherwise the special election shall occur not more than
forty (40) days after the vacancy occurs. The governor shall declare
the vacancy and issue the writ of election within five (5) days after
the vacancy occurs.'').
\10\ See N.Y. Pub.Off. Sec. 42 (``[T]he governor may in his
discretion make proclamation of a special election to fill such office,
specifying the district or county in which the election is to be held,
and the day thereof, which shall be not less than thirty nor more than
forty days from the date of the proclamation.'').
\11\ See Ga. Stat. Sec. 21-2-543 (``Whenever a vacancy shall occur
or exist in the office of Representative in the United States Congress
from this State the Governor shall issue, within 10 days after the
occurrence of such vacancy, a writ of election to the Secretary of
State for a special election to fill such vacancy, which election shall
be held on the date named in the writ, which shall not be less than 30
days after its issuance.'').
\12\ See Iowa Code Sec. 69.14 (``A special election to fill a
vacancy shall be held for a representative in Congress, or senator or
representative in the general assembly, when the body in which such
vacancy exists is in session, or will convene prior to the next general
election, and the governor shall order, not later than 5 days from the
date the vacancy exists, a special election, giving not less than forty
days' notice of such election.'').
\13\ Also, the first Presidential Succession statute, enacted in
1792, required the election of Presidential electors (who chose the
President) in a period as small as 27 days following a simultaneous
vacancy in the Presidency and the Vice Presidency in an era in which
the means of mass communication were exponentially less advanced. The
1792 statute provided for a process for electing a new President in as
short as 2 months. See Act of Mar. 1, 1792, ch. 8, Sec. 10, 1 Stat.
239, 240-41 (repealed 1886) (``[W]henever the offices of President and
Vice President shall both become vacant, the Secretary of State shall
forthwith cause a notification thereof to be made to the executive of
every State, and shall also cause the same to be published in at least
one of the newspapers printed in each State, specifying that electors
of the President of the United States shall be appointed or chosen in
the several States within thirty-four days preceding the first
Wednesday in December [the date the electors were to cast their votes]
then next ensuing; Provided, There shall be the space of 2 months
between the date of such notification and the said first Wednesday in
December . . .''). This meant that Presidential electors could be
required to be chosen in as little as 27 days because the Presidential
electors were required to meet within 34 days of the first Wednesday in
December to elect the President.
\14\ R. Doug Lewis, Written Testimony for U.S. House Administration
Committee (September 24, 2003) at 2.
\15\ Id. at 3.
\16\ Id. at 6.
---------------------------------------------------------------------------
Today, absentee and overseas ballot requests by electronic
means not involving physical transportation could further
facilitate the timely conducting of special elections. The
Pentagon has already developed a system that will allow troops
overseas to vote over the Internet in the 2004 elections.\17\
Touch-screen voting could further reduce the need for poll
workers, and could even eliminate entirely the need for paper
ballots. Yet while today's constantly advancing election
technology will make it much easier in the near future for
people to exercise their right to elected representation in
special elections, the adoption of a constitutional amendment
allowing Congress to deny that right of elected representation
would be permanent. Expedited special elections might not yield
flawless voting, but alternative proposals for a permanent
constitutional amendment would in certain crucial moments in
American history ban voting entirely, for everyone, everywhere.
Further, while a catastrophic attack on Washington, D.C. would
no doubt cause massive disruption in the Nation's capital, the
situation is likely to be much less severe in localities
throughout the country where special elections would be
held.\18\
---------------------------------------------------------------------------
\17\ See Guy Taylor, ``Online Absentee Voting Eliminates
Postmarks,'' The Washington Times (August 6, 2003) at A4 (``The
Pentagon is putting the finishing touches on an electronic voting
system that will allow about 100,000 military personnel and other
Americans living abroad to cast their ballots through the Internet in
the 2004 elections . . . The new system, in which each voter is
assigned a digital signature for voting through a secure Internet
connection, will replace the postal method of absentee ballots,
particularly for U.S. troops deployed around the world . . . Postmarks
will be obsolete under SERVE [the program's acronym], but voters using
the system will need access to the Internet and Windows software.
Although she could not offer numbers, Ms. Brunelli [director of the
Pentagon's Federal Voting Assistance Program] said the `vast majority
of troops' on deployment overseas have such access, including many of
those serving in Iraq. Although it won't be impossible for a person
using SERVE to commit voter fraud, Ms. Brunelli said the digital
signature, a string of randomly generated letters and characters
different for each registered voter, makes using the system as secure
as visiting a voting booth. Committing fraud through SERVE would be no
less difficult than committing it on election day at a regular polling
station, she said, adding that the system's security measures are
``more sophisticated'' than what a person must go through to partake in
banking transactions through the Internet.''). Security concerns will
of course have to be worked out in any such electronic voting system,
and progress in developing such systems can only be obtained through
trial and error. While a minority of researchers have been critical of
early attempts at online voting, the project remains promising. See Dan
Keating, ``Pentagon's Online Voting Program Deemed Too Risky,'' The
Washington Post (January 22, 2004) at A8 (`` `The concern for security
is a good thing . . . ,' Glenn Flood [a Pentagon spokesman] said. `But
we think the thing will be secure, and security will continue to be
enhanced. We're not going to stop it.' Supporters say the pilot for
military, government and private citizens abroad is important to learn
the right way to gather electronic votes and to help overseas voters
who often have trouble casting ballots. The chance of a security threat
has to be weighed against the knowledge gained and the improved voting
access for those people, said R. Michael Alvarez, co-director of the
CalTech-MIT Voting Technology Project and co-author of `Point, Click
and Vote,' a recent book about online voting . . . Supporters note that
the late-arriving overseas ballots contributed to the 2000 Florida
ballot fiasco. That election led to calls for better voting systems and
better ways to collect ballots from citizens abroad.'').
\18\ The Continuity of Government Commission takes an extremely
pessimistic view of the resiliency of the electoral process nationwide
following an attack on the Nation's capital, and even of the abilities
of printing companies to print ballots on an expedited basis. That
Commission reports that it ``estimates . . . that in the chaos after an
attack, it would be difficult for even the most expedited elections to
take place within 3 months. Not only might there be an initial period
of confusion that would delay the election, but there is also no
precedent for holding hundreds of special elections at the same time.
One problem along these lines [is] there are a limited number of ballot
printing companies, and they are not prepared to print ballots on a
moment's notice for more than a few races at a time.'' ``The Congress:
Preserving Our Institutions: The First Report of the Continuity of
Government Commission'' (May 2003) at 7.
---------------------------------------------------------------------------
Further, just recently, an unscheduled gubernatorial recall
election went forward in California. In that case, 135
candidates were certified for a statewide election that would
occur just 54 days later,\19\ with voters also asked to
consider two propositions, one concerning the collection of
racial data and another concerning funding for roads, bridges
and other public structures. Despite the much greater
complexity of such an election compared to an expedited special
election in a single district to fill a vacant House seat, the
election proceeded smoothly amidst unprecedentedly high voter
turnout. As The Washington Post reported: ``Voting in
California's historic gubernatorial recall election appeared to
go smoothly yesterday, as fears of malfunctioning voting
equipment and widespread voter confusion over a ballot listing
135 candidates to replace Gov. Gray Davis (D) failed to
materialize . . . [T]here were no indications of serious
problems or irregularities at most polling places across the
State. According to exit polls, almost nine out of 10 voters
said they had no problems with the voting equipment or the
lengthy ballot. Because local elections officials had only a
few weeks to prepare for the balloting, there were about 10,000
fewer polling places than usual, which some officials feared
might depress the turnout. But that did not appear to be the
case, as the heavy voting continued throughout the day . . .
The nonpartisan Field Poll projected that as many as 10 million
Californians would vote in the recall election, a 30 percent
increase over the 7.7 million people who voted in 2002 when
Davis was elected to a second term. A turnout of that size,
representing 65 percent of the State's 15.3 million registered
voters, would be the largest for any non-presidential election
in California history . . . Edana Tisherman said she had no
trouble with the ballot Tuesday. `There's been so much coverage
of this, it's very simple,' she said. `I said, Four holes, no
chads, we're gone.' '' \20\
---------------------------------------------------------------------------
\19\ See ``California Recall Timeline,'' The Washington Times
(October 8, 2003) at A10.
\20\ Edward Walsh and Dan Keating, ``Despite Lines, Voting Goes
Smoothly,'' The Washington Post (October 8, 2003) at A19.
---------------------------------------------------------------------------
C. SPEAKER'S ANNOUNCEMENT
H.R. 2844 provides for the Speaker of the House to make an
announcement of extraordinary circumstances when more than 100
seats are vacant. In the event the Speaker is not able to make
such announcements, a Speaker succession rule has already been
adopted by the House and is part of the House rules.\21\
---------------------------------------------------------------------------
\21\ In the event the Speaker is physically unable to perform his
duties, Speaker succession is provided for in House rule I(8)(b)(3),
which provides that ``In the case of a vacancy in the office of
Speaker, the next Member on the list [provided by the Speaker] shall
act as Speaker pro tempore until the election of a Speaker or a Speaker
pro tempore. Pending such election the Member acting as Speaker pro
tempore may exercise such authorities of the Office of Speaker as may
be necessary and appropriate to that end . . . [A] vacancy in the
office of Speaker may exist by reason of the physical inability of the
Speaker to discharge the duties of the office.'' Providing for the
repopulation of a largely depleted House would be necessary and
appropriate to the end of electing a new Speaker if there were a
vacancy in the Speaker's office. See also Wm. Holmes Brown and Charles
W. Johnson, ``House Practice: A Guide to the Rules, Precedents, and
Procedures of the House'' (108th Congress, 1st Session) (U.S.
Government Printing Office: 2003) at 638 Sec. 2 (``The Member acting as
Speaker pro tempore under this provision may exercise such authorities
of the Office of Speaker as may be necessary and appropriate pending
the election of a Speaker or Speaker pro tempore.'').
---------------------------------------------------------------------------
It is also appropriate to grant the Speaker the authority
to make such announcements because the Speaker already has the
authority under House rules to adjust the quorum requirement
downward to reflect deaths that leave seats vacant.\22\
---------------------------------------------------------------------------
\22\ The House rules were changed at the beginning of the 108th
Congress to provide that a quorum of the House is a majority of those
Members duly sworn and elected, and living. House rule XX(5)(c)
provides that ``Upon the death, resignation, expulsion,
disqualification, or removal of a Member, the whole number of the House
shall be adjusted accordingly. The Speaker shall announce the
adjustment to the House. Such an announcement shall not be subject to
appeal. In the case of a death, the Speaker may lay before the House
such documentation from Federal, State, or local officials as he deems
pertinent.'' This rule essentially codified existing House precedent.
In 1906, Speaker Cannon established the precedent contained in the
House Manual, Sec. 53, which provides that ``the decision of the House
now is that after the House is once organized the quorum consists of a
majority of those Members chosen, sworn, and living whose membership
has not been terminated by resignation, or by the action of the
House.''
---------------------------------------------------------------------------
D. JUDICIAL REVIEW
H.R. 2844 provides for judicial review of announcements of
vacancies by the Speaker. It is these provisions that are
within the jurisdiction of the House Judiciary Committee. These
provisions are based in part on the provision \23\ in the
Bipartisan Campaign Reform Act of 2002,\24\ and similar
provisions in other Federal statutes, that provide for review
by a three-judge panel. This language references 28 U.S.C.
Sec. 2284, which sets out the procedures by which three-judge
panels will convene. The judicial review provisions in the bill
also prohibit appeals from decisions of the three-judge court.
The provisions also allow State Governors to intervene in the
case and to have their views heard.
---------------------------------------------------------------------------
\23\ See 2 U.S.C.Sec. 437h note.
\24\ Pub. L. No. 107-155.
---------------------------------------------------------------------------
E. PROCEDURAL HISTORY
H.R. 2844 and related issues have had a long procedural
history. On February 28, 2002, the House Subcommittee on the
Constitution held a legislative hearing on H.J.Res. 67, a
proposed constitutional amendment to allow rule by a non-
elected House of Representatives. Witnesses who appeared at the
hearing included Norman Ornstein of the American Enterprise
Institute, which issued a report on Continuity in Government,
Professor Charles Tiefer, who for a decade was the solicitor
and deputy general counsel for the House of Representatives,
and Harold Relyea, Expert and Specialist in American National
Government and emergency preparations for the Congressional
Research Service.
During the 107th Congress, a bipartisan working group co-
chaired by then-House Republican Policy Committee Chairman
Christopher Cox and House Democratic Policy Chairman Martin
Frost, met regularly to discuss the issues surrounding this
legislation, and as a result the House passed H.Res.559, whose
chief sponsor was Representative Cox, expressing the sense of
the House of Representatives that each State should examine its
existing statutes, practices, and procedures governing special
elections so that, in the event of a catastrophe, vacancies in
the House of Representatives may be filled in a timely fashion.
Unfortunately, only one State, California, responded to that
request and expedited their special election laws in the event
of a catastrophe.
Consequently, House Judiciary Committee Chairman
Sensenbrenner and the other original sponsors of H.R. 2844
responded precisely as the Founders would have expected, by
acting pursuant to authority under article I, section 4, clause
1, of the Constitution to ensure that the House of
Representatives can be repopulated expeditiously in
extraordinary circumstances. H.R. 2844 received a hearing in
the House Administration Committee on September 24, 2003, and
it was marked up and reported out of the House Administration
Committee on December 8, 2003. The House Judiciary Committee
received a sequential referral on the portion of the
legislation within its jurisdiction, and reported out H.R. 2844
on January 21, 2004.
Hearings
No House Judiciary Committee hearings were held on the
judicial review provisions of H.R. 2844 over which the
Committee had jurisdiction. Similar issues were raised in a
hearing, before the Constitution Subcommittee on H.J. Res. 67
on February 28, 2002. The Committee on House Administration
held a hearing on H.R. 2844 on September 24, 2003.
Committee Consideration
On January 21, 2004, the Committee met in open session and
ordered favorably reported the bill H.R. 2844 with an amendment
by a recorded vote of 18 to 10, a quorum being present.
Vote of the Committee
In compliance with clause 3(b) of Rule XIII of the Rules of
the House of Representatives, the Committee notes that the
following recorded vote occurred during the committee
consideration of H.R. 2844.
1. Motion to report H.R. 2844, as amended, by a rollcall
vote of 18 yeas to 10 nays, the motion was agreed to.*
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Carter...................................................... X
Mr. Feeney...................................................... X
Mrs. Blackburn..................................................
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 18 10
----------------------------------------------------------------------------------------------------------------
*Note: If Representative Maxine Waters had been present at the time
of the vote, she would have voted ``Nay.''
Committee Oversight Findings
In compliance with clause 3(c)(1) of Rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of Rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of Rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of Rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2844, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
Performance Goals and Objectives
H.R. 2844 does not authorize funding. Therefore, clause
3(c)(4) of Rule XIII of the Rules of the House of
Representatives is inapplicable.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 4, clause 1; article I,
section 5, clauses 1 and 2; and article III, section 2, clauses
1 and 2 of the Constitution.
Section-by-Section Analysis and Discussion
Sec. 1. Short Title. Section 1 provides that the title of
the Act is the ``Continuity in Representation Act of 2003.''
The Committee on the Judiciary adopted a technical amendment to
change the year to 2004.
Sec. 2. Requiring Special Elections to Be Held to Fill
Vacancies in House in Extraordinary Circumstances.
Section 2 provides for the expedited special election of
new Members to fill seats left vacant in ``extraordinary
circumstances.'' ``Extraordinary circumstances'' occur when the
Speaker of the House announces that vacancies in the
representation from the States in the House exceeds 100. When
such ``extraordinary circumstances'' occur, a special election
must be called within 45 days, unless a regularly scheduled
general election for the office involved is to be held within
75 days. Within 10 days of such an announcement by the Speaker,
the political parties of the State that are authorized to
nominate candidates by State law may each nominate one
candidate to run in the election. The bill as introduced
provided for a 21-day period, but the Committee on House
Administration adopted an amendment providing for the 45-day
period, and the Committee on the Judiciary adopted the version
passed by the Committee on House Administration.
Section 2 also provides for judicial review of
announcements of vacancies by the Speaker and references 28
U.S.C. Sec. 2284, which sets out the procedures according to
which the three-judge panels are convened. The judicial review
provisions in the bill also prohibit appeals from decisions of
the three-judge court. The provisions also allow State
Governors to intervene in the case and have their views heard.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of Rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
SECTION 26 OF THE REVISED STATUTES OF THE UNITED STATES
Sec. 26. [The time] (a) In General.--Except as provided in
subsection (b), the time for holding elections 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) Special Rules in Extraordinary Circumstances.--
(1) In general.--In extraordinary circumstances,
the executive authority of any State in which a vacancy
exists in its representation in the House of
Representatives shall issue a writ of election to fill
such vacancy by special election.
(2) Timing of special election.--A special election
held under this subsection to fill a vacancy shall take
place not later than 45 days after the Speaker of the
House of Representatives announces that the vacancy
exists, unless a regularly scheduled general election
for the office involved is to be held at any time
during the 75-day period which begins on the date of
the announcement of the vacancy.
(3) Nominations by parties.--If a special election
is to be held under this subsection, not later than 10
days after the Speaker announces that the vacancy
exists, the political parties of the State that are
authorized to nominate candidates by State law may each
nominate one candidate to run in the election.
(4) Extraordinary circumstances.--
(A) In general.--In this subsection,
``extraordinary circumstances'' occur when the
Speaker of the House of Representatives
announces that vacancies in the representation
from the States in the House exceed 100.
(B) Judicial review.--If any action is
brought for declaratory or injunctive relief to
challenge an announcement made under
subparagraph (A), the following rules shall
apply:
(i) Not later than 2 days after the
announcement, the action shall be filed
in the United States District Court
having jurisdiction in the district of
the Member of the House of
Representatives whose seat has been
announced to be vacant and shall be
heard by a 3-judge court convened
pursuant to section 2284 of title 28,
United States Code.
(ii) A copy of the complaint shall
be delivered promptly to the Clerk of
the House of Representatives.
(iii) A final decision in the
action shall be made within 3 days of
the filing of such action and shall not
be reviewable.
(iv) The executive authority of the
State that contains the district of the
Member of the House of Representatives
whose seat has been announced to be
vacant shall have the right to
intervene either in support of or
opposition to the position of a party
to the case regarding the announcement
of such vacancy.
Markup Transcript
BUSINESS MEETING
WEDNESDAY, JANUARY 21, 2004
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order, and
a working quorum is present. Pursuant to notice, I now call up
the bill H.R. 2844, the ``Continuity in Representation Act of
2003,'' for purposes of markup, and move its favorable
recommendation to the House. Without objection, the bill will
be considered as read and open for amendment at any point, and
the text as reported by the Committee on House Administration,
which the Members have before them, will be considered as read,
considered as the original text for purposes of amendment, and
open for amendment at any point.
[The Committee Print follows:]
Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes to explain the bill.
I had introduced this bill on July 24th along with Rules
Committee Chairman David Dreier and Representatives Candice
Miller and Tom Cole, who are both former chief State election
officials, and House Constitution Subcommittee Chairman Steve
Chabot and Representative Ron Paul. Ranking Member John Conyers
is also a co-sponsor of this bill. It has the support of the
Speaker of the House. It received a hearing before the House
Administration Committee which favorably reported the
legislation on December 8th of last year.
This bill will protect the people's right to chosen
representation. The bill provides for the expedited special
election of new Members to fill seats left vacant in
extraordinary circumstances. Extraordinary circumstances occur
when the Speaker announces that vacancies in the representation
from the States in the House exceed 100. Under the bill, when
such extraordinary circumstances occur a special election must
be called within 45 days unless a regularly scheduled general
election for the office involved is to be held within 75 days.
Within 10 days of such an announcement by the Speaker, the
political parties of the State that are authorized to nominate
candidates by State law may nominate one candidate to run in
the election.
The bill also provides for judicial review of announcements
of vacancies by the Speaker. For purposes of markup, this
Committee only has jurisdiction over the judicial review
provisions which are contained in section 2(b)(4)(B) of the
bill. These provisions provide for judicial review of the
announcement of vacancies by the Speaker. They are based on the
provision in the Bipartisan Campaign Reform Act of 2002 and
similar provisions in other Federal statutes that provide for a
review by three-judge panels. These provisions reference 28
United States Code 2284, which sets out the procedures
according to which three-judge panels will assemble themselves.
Congress has the clear constitutional authority to enact this
bill under article 1, section 4, which states that, quote,
``Congress may at any time by law make or alter,'' unquote,
State election laws.
Consistent with the right to chosen representation, the
Founders explicitly considered Congress' power to require
expedited special elections as the solution to potential
discontinuity of Government in emergency situations. As
Alexander Hamilton wrote in the Federalist Papers, the
Constitution gives the Congress, quote, ``a right to
interpose'' its special election rules on the State, quote,
``whenever extraordinary circumstances might render that
interposition necessary to its safety.'' The Supreme Court has
unanimously approved such clear congressional authority.
Senator Cornyn, the Chairman of the Senate Subcommittee on
the Constitution, has agreed to work with what the House
determines to be the most appropriate manner of filling House
seats in emergencies, and I urge swift approval of the
provisions within our Committee's jurisdiction so that this
important legislation may move forward expeditiously.
The gentleman from Michigan.
Mr. Conyers. Good morning, Mr. Chairman. Happy New Year to
you and the Members of the Committee.
We are called now upon to address one of these unfortunate
potential problems in terms of a national emergency. There are
several directions that you have outlined, a constitutional
amendment, a change of the House rules, and a predesignation of
interim successors, and a final approach which requires States
to hold special elections within a 45-day time frame. This is a
problem, and the solutions are going to require careful
examination. It seems to me that a constitutional solution
should be avoided at all costs.
Now, on the quicker approach, the one before us, the 45-day
time frame, the clear concern is that it may not be enough
time. We are too long constitutionally, we may be too short on
a 45-day. Let us see where our discussion leads today. And
there are some mandates about resources that may not be covered
here, and I would like to also examine the issue of Member
disability or incapacity, wherever that might lead. But I do
want to say that the Chairman has been working with us on a
cooperative basis, and we have our colleagues on another
Committee with whom we have to work. And so I am glad that the
tone of this is starting off and will continue to be on a
totally nonpartisan basis.
And I would yield with any time I have left, I would yield
to any of my colleagues that might have a comment. If not, I
return the balance of my time.
Chairman Sensenbrenner. Without objection, all Members'
opening statements will be placed in the record at this point.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan, and Ranking Member, Committee
on the Judiciary
Today we're called upon to address one of the most timely questions
facing this body: What should be done to ensure the continuity of
government in the unfortunate event of a future national emergency such
as 9/11?
Several proposals have been introduced to address this difficult
issue. The first approach advocates for a Constitutional amendment
which would provide for temporary appointments to the House. Another
concept proposes a change in the current set of House rules allowing
for the admission of ``emergency delegates'' and the pre-designation of
``interim successors.'' A final approach, like the bill before us,
requires states to hold special elections within a forty-five (45) day
time-frame whenever extraordinary circumstances give rise to an excess
of one-hundred (100) or more vacancies in the House.
I initially agreed to serve as an original cosponsor of the
legislation before us because I generally believe that we should avoid
amending the Constitution, when a statutory response is available. Such
an approach is quicker, more likely to be passed into law, and avoids
amending our most sacred national charter.
Having said that, I am the first to recognize that the bill before
us raises several serious concerns. For example, it has been suggested
that the forty-five (45) day time-frame may be insufficient to conduct
expedited elections, and lead to the disenfranchisement of many of our
men and women in the armed services. It also has been brought to my
attention that the bill contains several unfunded mandates and is
completely silent on the issue of Member disability or incapacity.
It is my hope that we can work together on a bipartisan basis with
our colleagues on the House Administration Committee to resolve these
issues and come up with a proposal or proposals that we can take to the
full House. This is not an issue that should necessitate a partisan
debate.
I thank the Chairman for his work on this most serious issue.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas
Chairman Sensenbrenner. Are there any amendments? And the
Chair would remind the Members that the only part of the bill
that is within the jurisdiction of this Committee and thus
amendable is the provision in the bill requiring expedited
judicial review by a three-judge panel. Are there any
amendments? If there are no amendments----
Mr. Watt. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from North Carolina.
Mr. Watt. I don't have an amendment. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman. And I have listened to
the Chairman's comments and to the Ranking Member's comments,
and am encouraged to hear that this is not a partisan issue.
Since I am about to take a position that is contrary to both
the Chairman and the Ranking Member, I will be consistent at
least with that position.
The thing that is troubling about this is that not long
after September 11, the Speaker and the Majority Leader--
minority leader, I am sorry, came together and appointed a
committee that we had been told would consider this issue at
some length. It was to be chaired by Mr. Dreier, the Chairman
of the Rules Committee. And part of the reason for that I
thought was that this legislation or the solution to what is an
apparent problem that didn't become apparent to most of the
world until after September 11th kind of transcended the
jurisdiction of several Committees, no particular Committee,
House Administration, Judiciary, any of the Committees seemed
to have full jurisdiction over it. I would submit if any
Committee does have jurisdiction over the full matter it would
be the Judiciary Committee. But it seemed to me that the
Speaker and the leadership in the House decided that this
should be an issue that should be resolved by a broader range
of people from several different Committees. I happen to know
that because I was one of the designees to that Committee that
was set up by the Speaker and the minority leader. I didn't
seek the position, I was asked if I would serve, and I say
yeah, okay, fine. It sounds like a big problem and one that
needs to be solved.
And the problem that I am having is that that Committee has
done nothing. Now, maybe that is why this bill was introduced
and this Committee is stepping into that void, but it seems to
me that at a minimum the Members of that Committee ought to
have been cut into the process, to the extent of being involved
in the hearings; if there were going to be hearings about any
bill, all of the bills should have been given some
consideration. And I am not sure that I have any particular
problem or brief for this bill, but it doesn't seem to me that
its moving is a function of anything other than the fact that
the Chairman of this Committee happens to have introduced it,
which might make it a good bill but doesn't necessarily make it
a good bill. And the fact that the Ranking Member has co-
introduced it might make it a good bill, but doesn't
necessarily so.
The bottom line is I think this is an issue that cries out
for substantially broader hearings, and as a consequence--I am
sure I am whistling in the wind, but I did want to put in the
record my intention to vote against this bill at this point
because in my opinion it has not had the requisite hearings.
And to come 1 day, 2 days after we have been on a break and
rush to a markup seems to me to be premature.
Mr. Conyers. Would the gentleman yield?
Mr. Watt. I would be happy to yield to the Ranking Member.
Mr. Conyers. Is there a process by which this bill could be
referred back to the Committee upon which you were named to
serve and given back to us?
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Watt. If the gentleman would extend for one additional
minute to respond.
Chairman Sensenbrenner. Without objection.
Mr. Watt. I don't know what that process would be. I mean,
I am frustrated with the other process, too, because that
Committee, the Chair, the Ranking Member of that Committee has
done absolutely nothing that I have seen. And maybe that is a
compelling reason to be pushing this bill. But it seems to me
that this is a much, much broader issue that requires a lot
more review.
Chairman Sensenbrenner. Would the gentleman yield to me?
Mr. Watt. I would be happy to refer to you.
Chairman Sensenbrenner. The sequential referral that the
Speaker gave to this Committee expires on January 31st. So if
we don't do anything by that time, the bill gets taken away
from us. One of the things that I have been very insistent on
to preserve our Committee's jurisdiction is to hold markups
before our sequentials expire, and that is why we are having a
markup today.
Mr. Watt. But Mr. Chairman, what is the consequence of
that? I mean.
Chairman Sensenbrenner. Without objection, the gentleman is
given another minute.
Mr. Watt. If our Committee's jurisdiction expires, but in
the process of marking up a bill that has had no hearings on an
issue of such magnitude----
Chairman Sensenbrenner. If the gentleman----
Mr. Watt.--aren't we just rushing to judgment to do
something?
Chairman Sensenbrenner. If the gentleman would yield. The
House Administration Committee did have hearings on this. They
marked up those parts of the bill that were in their
jurisdiction. We are having a markup today in dealing with it,
the one part of the bill that was in our jurisdiction. The
January 31st date is not determined by anybody on this
Committee; that is one of the Speaker's prerogatives and he set
the date.
Mr. Watt. Mr. Chairman, let me just ask the Chairman a
question. Does the Chairman have any idea how this all ties in
with this other Committee that was appointed by the leadership?
I mean, is there a division of how this will work itself out?
Chairman Sensenbrenner. If the gentleman would yield. The
answer is no. But this Chair has been a very firm supporter of
dealings with legislation through standing Committees that have
specific jurisdictions under the rules rather than creating ad
hoc or select Committees like the Homeland Security Committee.
Mr. Watt. If I could just wrap up, Mr. Chairman. I would
just say that I am not defending the jurisdiction of a
Committee that was created on an ad hoc basis. I didn't
institute this process, I have no vested interest in that
process. But it seems to me, if the leadership goes out of its
way to appoint a Committee to do something, one would think
that it would be of sufficient magnitude that that Committee--
maybe I am taking my beef up with the wrong people, but I just
wanted to get on the record that there is a separate process
that was set up to deal with this, and it seems to me under
those circumstances this is not the process we ought to be
following. And I plan to vote against it for that reason.
Chairman Sensenbrenner. The gentleman's time has expired.
Are there amendments?
Ms. Lofgren. Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman from California.
Ms. Lofgren. I would like to move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. I am concerned. I certainly appreciate the
Chairman always attempts to protect our jurisdiction. I think
the Committee is of one mind on that point, that we do want to
protect our jurisdiction. However, I have a number of concerns
about the bill before us and will not support it.
First, you know, I thought a lot about this, and as a
matter of fact in the last Congress introduced a proposed
constitutional amendment that would allow the Congress by
statute to provide for the temporary replacement of House
Members after a disaster. But as I look at the bill--and here
as scenario. Last night we were all at the State of the Union,
and what if there has been a terrorist incident that actually
resulted in the elimination of all of the Members of the House
of Representatives and Senate. In the case of the Senate they
would be appointed, the replacements would be appointed by
Governors and the Senate could be quickly reconstituted. In the
case of the House there could be no House and the President
would of necessity be required to assume dictatorial powers.
It seems to me that there needs to be an ability in the
case of a worst-case scenario for the House of Representatives
to be reconstituted on a temporary basis so that the President
is not required to assume dictatorial powers and then elections
quickly to follow. This bill does not do that. I did not
reintroduce my constitutional amendment in this Congress
because there was no action in the last Congress. And I guess I
am inquiring whether, if this bill does not become law, there
might be a willingness on the part of the Committee to consider
either my proposed constitutional amendment or another so that
we could address this need for immediate relief and then a
quick election, because obviously we don't want appointees to
serve.
Chairman Sensenbrenner. Would the gentlewoman yield?
Ms. Lofgren. I certainly would yield.
Chairman Sensenbrenner. I think the gentlewoman has I think
highlighted the difference of opinion on what to do in case
there is a catastrophe. And that is, whether there should be
appointed Members should sit in the House of Representatives
for the first time in the history of our country or,
conversely, whether we should have some type of expedited
special election procedure in which the replacement Members are
elected, and States which have inordinately long special
election procedures would end up having that short-circuited so
that representation could be filled in as quick a manner as
possible.
I elect for the special election procedure. I respect those
that feel that we should have some type of appointed system at
least temporarily, but that would require a constitutional
amendment. And constitutional amendments, as we know, take a
very, very long time to consider, to pass in the Congress and
to be ratified by the States. The Constitution Subcommittee has
had hearings on this issue, and I think that at least those of
us who support this bill come down on the side of figuring out
a way to try to give the voters a chance to elect the
replacement Members rather than to do as the two most popular
amendments have proposed to do, and that is either to have a
Governor appoint a temporary successor or an incumbent Member
who happened to be wiped out in a terrorist attack designating
a successor and choosing a successor.
Now, I am sure that the gentlewoman from California, as do
I, would not particularly appreciate our Governors appointing a
successor because we come from opposite parties to the party
that the Governor has, nor do I think our voters would be very
happy with us trying to keep a secret saying--who is going to
be the successor should we be wiped out in a terrorist attack.
So this is a difference of philosophy. I respect that. I go
on the side of expedited special elections, and that is what is
in this bill.
Ms. Lofgren. Since I have so generously yielded to the
Chairman, I would ask unanimous consent for an additional 1, 2
minutes.
Chairman Sensenbrenner. Without objection.
Ms. Lofgren. I would just note none of us wants an
appointed House of Representatives, however, nor do I think
that the House ought to be an appointed body as the Senate is
after an incumbent Senator dies. However, the problem of the
President of necessity seizing dictatorial powers in the case
of a disaster needs to be addressed. And I think certainly it
is possible in a constitutional amendment to provide for a very
short period of time of that appointment. For example, a period
of--I am just pulling out a number--2 months so that you would
not have a situation in the Senate where individuals serve for
a period of 2 years. But I don't think where we might prefer
the House of Representatives, none of us would argue that the
Senate is not a democratic body, small d, and it certainly is
the case, I mean, first that Senators who die can be replaced
by Governors of a different party. If--that would be the case
in California and in your State, but it is more important that
we reconstitute the Government itself, that we have three
branches of Government that function than that we be hung up on
partisan issues.
I would also like to note that in the bill before us 45
days is probably not enough time to hold elections. It would
not probably allow for overseas or military voters to
participate. I think there is a need also to address incapacity
issues. There probably would not be time for a voter
registration or primaries or ballot access for independent and
third party candidates.
So I appreciate the spirit with which this bill has been
offered. I think it does not solve the worst case problem that
we need to solve. And I yield back my time.
Mr. Conyers. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Conyers. Thank you. Is there a possibility within the
time the Committee has the jurisdiction of the bill that we
hold at least one hearing to more fully explore some of the
reservations that have been articulated here so that this
measure will not be subject to having been whipped through
without----
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Conyers. Of course.
Chairman Sensenbrenner. Given the amount of time that we
are in session before the 31st of January, I think the answer
is no, because we have a markup scheduled of important
legislation already, what is left over from this markup,
practically all day next Wednesday.
What I can point out, however, is that the House
Administration Committee had at least two hearings on this
subject. We had a general oversight hearing on the subject of
constitutional amendments before the Subcommittee chaired by
the gentleman from Ohio, Mr. Chabot. And, really, all that is
in the jurisdiction of our Committee is whether or not there
should be a three-judge panel to have an expedited review of
the Speaker's power to declare an emergency when 100 or more
seats in the House of Representatives are vacant.
You know, to answer the questions relative to disability, I
would prefer to have State law prevail on that. We are
representatives of States, not national law. And with respect
to the concern that the gentlewoman from California raised
relative to overseas and military electors voting by absentee,
the State of Wisconsin requires that absentee ballots be mailed
21 days prior to any election. That has never been a problem in
the ballots reaching people overseas or in the military in a
timely manner and being returned. And if you look at the time
frame in this bill, the Speaker declares an emergency 10 days
after that the parties nominate their candidates; that gives 14
days to print the ballots and to get them in the mail, which
should be an adequate period of time. Some States have
primaries for special elections; other States like Kentucky,
where there is a special election campaign going on, has the
parties nominate the candidates and there is no primary
election.
You know, I think the object is to fill these vacant seats
as quickly as possible with people who can come to Congress
with a mandate, and I think that this bill does it in as quick
a time as possible given the mechanics of declaring a vacancy,
nominating candidates, calling an election, and printing the
ballots and having the people vote.
Mr. Conyers. Well, Mr. Chairman, your State isn't Florida.
So let us--you know, I am happy about the 21-day rule in your
State, but there are States that I don't know if 45 days is
enough, frankly.
But at any rate, what I am trying to move toward is the
mere fact that we will be back sometime between now and the
expiration of our jurisdiction date, and I would just feel
better knowing that those who had reservations and objections
would have been given as much time.
Now, the jurisdiction question. From my point of view, this
is a Judiciary Committee matter of which the Administration
Committee might have found something to get a paragraph or two
in on.
Mr. Watt. Would the gentleman yield on that point?
Mr. Conyers. But I just can't understand how we end up
being the tail wagging the dog and this other Committee, as
good and important as it is, ends up deciding a question of
such constitutional gravity and we get a little section. And I
yield to my friend from North Carolina.
Mr. Watt. I thank the gentleman for yielding, and I
couldn't agree with the gentleman more. If there is any
Committee that really does and should have jurisdiction over
it, if the leadership hadn't appointed a kind of an umbrella
Committee, it should be this Committee. We shouldn't be arguing
about a three-judge panel. This is a matter of national
constitutional import, and for the life of me I can't see why
90 percent, 95 percent of the bill would go to House
Administration on an issue of this magnitude. I just, I agree
with the gentleman.
Mr. Conyers. I will return my time, sir.
Chairman Sensenbrenner. Are there amendments?
Mr. Schiff. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff.
Mr. Schiff. I want to thank the Chairman for yielding, and
I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. I appreciate all the work that the Chair has
put into this, and many other Members. I share the concern that
an undertaking of this magnitude really is deserving of more
time and opportunity for study for this Committee. We have a
very thoughtful report by the Continuity of Government
Commission, and I think many of the Members would benefit from
having some soft participants of that commission come before
this Committee, give us an opportunity to question them, ask
them about really what appear to be the two competing
philosophies here: Whether we are better off preserving the
sole body for which all its Members come here with a mandate
from the electorate or whether it is prudent in the event of a
catastrophe to have a short-term appointment pending the
election. I think it is a very legitimate question.
The Commission that has studied this came down on the
opposite side of what the Chairman is recommending in his bill.
I think it would be valuable to bring in not only those that
advocate these temporary short-term appointments to make sure
that the gravamen of the problem, the immediate necessity of
having a check on the executive in the event of a catastrophe
is properly weighted against the desire to keep the elective
nature of this body intact. And I would inquire of the Chair of
the possibility of a letter from the Chair and the Ranking
Member to the Speaker requesting that this deadline be
expanded. I would imagine, given the gravity of this issue, a
bipartisan request for more time to give us the opportunity to
have an oversight hearing prior to the markup would be looked
upon with favor by the Speaker. I would ask if that is an
alternative we might pursue.
Chairman Sensenbrenner. If the gentleman would yield. We
already had an oversight hearing before Mr. Chabot's
Subcommittee. Those issues were very, very adequately
ventilated at the time by our colleague from Washington, Mr.
Baird, and others, and I don't see that anything new would come
out as a result of this. I think we all know what the issues
are, we all know what the debate is on both sides of the issue.
There is a philosophical disagreement on that, and the place to
work the philosophical disagreement out is not in this
Committee, which was given a very limited jurisdiction by the
Speaker, and which will not change as a result of House
Administration reporting the bill out in December, but simply
sending the bill out to the floor and letting the House work
its will.
Mr. Scott. Mr. Chairman.
Chairman Sensenbrenner. The time belongs to the gentleman
from California.
Mr. Schiff. Mr. Chairman, I would be happy to yield such
time as I have remaining to the gentleman from Virginia.
Mr. Scott. Thank you.
Mr. Chairman, I would ask unanimous consent that a letter
from the gentleman from Connecticut, Mr. Larson, the Ranking
Member of the House Administration Committee, be entered into
the record.
Chairman Sensenbrenner. Without objection.
[The material referred to follows:]
Mr. Scott. The letter points out that on October 2 of 2002,
the House passed a resolution encouraging States to provide by
State law provisions to deal with this circumstance. That would
recognize the difference in various States. I know Virginia, we
can hold a State house election in 2 weeks, and we have done
that quite frequently as a matter of fact. Particularly during
the session if there is a vacancy, 2 weeks from start to
finish, from the call of the election to the election itself, 2
weeks, and the person would be seated 2 days after that. Some
States might not want to do that, but if Virginia wants to do
it that ought to be Virginia's decision. 45 days, therefore,
might be enough in some areas, might be too much in others.
It also points out to a one-size-fits-all problem, that if
you have problems of ballot access, how minor parties get on.
Some States have runoffs, some States, as the Chairman has
mentioned, have primaries, some can waive primaries. It may be
best to just leave this to the States to deal with it itself.
The States will know that there is a crisis and they need to be
filled. And so I would just like this letter in the record and
for the record.
Chairman Sensenbrenner. It is the gentleman from
California's time.
Mr. Schiff. I would be glad to yield.
Mr. Watt. Mr. Chairman, I don't want to beat this to death,
but I just think this discussion illustrates the dire need for
more study of this issue and some hearings. This is a very
complex issue. It deals with appointment versus election, it
deals with providing opportunities not only for a rush, rush,
rush election, but for a real democratic election. I mean, a
short period for an election limits the number of candidates to
only the richest people probably in every State. I mean, there
are all kinds of implications that are at play here that need
to be studied. And maybe there was a hearing in the
Constitution Subcommittee; it wasn't even on this bill. But
this Committee really or some Committee, either the big
Committee that was appointed by the Speaker or this Committee,
needs to take ownership of this issue. And in the absence of
that, I would encourage my colleagues to vote against this bill
today.
Chairman Sensenbrenner. The gentleman's time has expired.
Are there amendments? The gentlewoman from California.
Ms. Sanchez. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Sanchez. I wish to associate myself with some of the
previous comments that were made by my colleagues regarding the
possible disenfranchisement of voters that this bill has the
potential to do. It has been mentioned about third party
candidates, it has been mentioned about overseas and absentee
ballots and whether 45 days would be an adequate time to get
States to be able to get those out and get them printed, get
them out in time, and receive them back for the election.
Perhaps for smaller States 45 days might seem like a lot of
time. But when you consider the State of California, which has
53 of the Members of Congress in it and an extremely large
population in comparison to the other States, it is a logical I
think acrobatic fete to try to complete all of that without
disenfranchising voters within 45 days. So I would agree that I
think that this Committee needs to take a harder look at it and
I can certainly understand wanting to preserve our jurisdiction
over the issue. But it is, as my colleague Mr. Watt said, an
issue that strikes at the very heart of our Constitution and
has constitutional import. And so I don't believe that giving
it such short shrift is really ideal in this case. And I agree
that we should perhaps think about in the future an honest and
real debate by the full Committee on issues such as this that
have constitutional import. And with that, I will yield back
the remainder of my time.
Chairman Sensenbrenner. Are there amendments? If there are
no amendments, a reporting quorum is present. Without
objection, the short title is amended by striking 2003 and
inserting 2004. Without objection, the version of the bill as
reported by the House Administration Committee and laid down as
the base text is adopted.
The question occurs on the motion to report the bill H.R.
2844 favorably. All those in favor will say aye. Opposed, no.
The ayes appear to have it. The ayes have it.
Mr. Watt. Ask for a recorded vote.
Chairman Sensenbrenner. A recorded vote is ordered. The
question is on reporting H.R. 2844 favorably. Those in favor
will as your names are called answer aye; those opposed no. And
the Clerk will call the roll.
The Clerk. Mr. Hyde.
[no response.]
The Clerk. Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble votes aye.
Mr. Smith.
Mr. Smith. Aye.
The Clerk. Mr. Smith votes aye.
Mr. Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly votes aye.
Mr. Goodlatte.
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte votes aye.
Mr. Chabot.
Mr. Chabot. Aye.
The Clerk. Mr. Chabot votes aye.
Mr. Jenkins.
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins votes aye.
Mr. Cannon.
Mr. Cannon. Aye.
The Clerk. Mr. Cannon votes aye.
Mr. Bachus.
Mr. Bachus. Aye.
The Clerk. Mr. Bachus votes aye.
Mr. Hostettler.
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler votes aye.
Mr. Green.
Mr. Green. Aye.
The Clerk. Mr. Green votes aye.
Mr. Keller.
Mr. Keller. Aye.
The Clerk. Mr. Keller votes aye.
Ms. Hart.
Ms. Hart. Aye.
The Clerk. Ms. Hart votes aye.
Mr. Flake.
[no response.]
The Clerk. Mr. Pence.
Mr. Pence. Aye.
The Clerk. Mr. Pence votes aye.
Mr. Forbes.
Mr. Forbes. Aye.
The Clerk. Mr. Forbes votes aye.
Mr. King.
Mr. King. Aye.
The Clerk. Mr. King votes aye.
Mr. Carter.
Mr. Carter. Aye.
The Clerk. Mr. Carter votes aye.
Mr. Feeney.
Mr. Feeney. Aye.
The Clerk. Mr. Feeney votes aye.
Mrs. Blackburn.
[no response.]
The Clerk. Mr. Conyers.
Mr. Conyers. No.
The Clerk. Mr. Conyers votes no.
Mr. Berman.
[no response.]
The Clerk. Mr. Boucher.
Mr. Boucher. No.
The Clerk. Mr. Boucher votes no.
Mr. Nadler.
[no response.]
The Clerk. Mr. Scott.
Mr. Scott. No.
The Clerk. Mr. Scott votes no.
Mr. Watt.
Mr. Watt. No.
The Clerk. Mr. Watt votes no.
Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Ms. Lofgren votes no.
Ms. Jackson Lee.
[no response.]
The Clerk. Ms. Waters.
[no response.]
The Clerk. Mr. Meehan.
Mr. Meehan. No.
The Clerk. Mr. Meehan votes no.
Mr. Delahunt.
[no response.]
The Clerk. Mr. Wexler.
[no response.]
The Clerk. Ms. Baldwin.
Ms. Baldwin. No.
The Clerk. Ms. Baldwin votes no.
Mr. Weiner.
Mr. Weiner. No.
The Clerk. Mr. Weiner votes no.
Mr. Schiff.
Mr. Schiff. No.
The Clerk. Mr. Schiff votes no.
Ms. Sanchez.
Ms. Sanchez. No.
The Clerk. Ms. Sanchez votes no.
Mr. Chairman.
Chairman Sensenbrenner. Aye.
The Clerk. The Chairman votes aye.
Chairman Sensenbrenner. Are there Members who desire to
record or change their votes? If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 18 ayes and 10 nays.
Chairman Sensenbrenner. And the motion to report favorably
is agreed to. Without objection, the bill will be reported
favorably to the House in the form of a single amendment in the
nature of a substitute incorporating the----
Ms. Waters. Mr. Chairman?
Chairman Sensenbrenner. The Chair has announced the result
of the rollcall. Would the gentlewoman from California wish to
make a statement on how she would have voted?
Ms. Waters. Yes, Mr. Chairman. I would have voted no.
Chairman Sensenbrenner. Without objection, the
gentlewoman's statement will appear in the statement following
the rollcall.
Again, without objection, the bill will be reported
favorably to the House in the form of a single amendment in the
nature of a substitute incorporating the amendment adopted here
today. Without objection, the Chairman is authorized to move to
go to conference pursuant to House rules. Without objection,
the staff is directed to make any technical and conforming
changes, that all Members will be given 2 days as provided by
the House rules in which to submit additional dissenting
supplemental or minority views.
Dissenting Views
The House Judiciary Committee favorably reported H.R. 2844,
the ``Continuity in Representation Act of 2003,'' by a vote of
18-10, following a narrow sequential referral from the House
Administration Committee. H.R. 2844 addresses the critical
issue of how House vacancies are to be filled in the event a
substantial number of Members are killed or incapacitated by a
terrorist attack or other catastrophic incident. Although that
issue, and how it is resolved, is a matter of national
constitutional import, the referral to this Committee limited
our jurisdiction to a single provision--the provision
authorizing judicial review by a three-judge panel of the
announcement by the Speaker that a sufficient number of
vacancies exist to trigger the special election requirements of
the bill. In our view, it is an abrogation of this Committee's
responsibility to restrict our consideration to such a
minuscule, and arguably inconsequential, portion of the bill
while avoiding the broader issues that implicate the very
foundation of our tripartite form of government.
The events of September 11, 2001 brought into sharp focus
the potential for the sudden, cataclysmic disruption of
operations in one or more branches of our government.
Specifically, had United flight 93 reached its intended
destination the U.S. Capitol dome--the death or severe injury
or disability of innumerable Members of Congress would have
been imminent. Under the Constitution, although the 17th
Amendment permits State governors to appoint Senators to vacant
seats \1\, there is no comparable provision for the prompt
replacement of Members of the House of Representatives.
Instead, article I, section 2, clause 4 of the Constitution
requires the executive authority of a State in which a vacancy
occurs in the House to order a special election to fill the
vacancy. But, Congress has the power under article I, section
4, clause 1 of the Constitution to ``make or alter'' State laws
governing ``the times, places and manner of holding elections''
for Members of the House of Representatives. Pursuant to that
authority, H.R. 2844 would require the States, upon
announcement by the Speaker of the House that the number of
vacancies exceeds 100, to conduct special elections within 45
days of the announcement.
---------------------------------------------------------------------------
\1\ The 17th Amendment provides no resolution in the event of
widespread incapacitation of a majority of Senators. A vacancy has
typically been understood to exist upon the death, resignation or
expulsion of a Senator.
---------------------------------------------------------------------------
The only Committee to conduct hearings on H.R. 2844, the
House Administration Committee, was deeply divided on the
questions whether the bill adequately addresses the myriad
issues concerning the continuity of Congress and whether the
bill, independent of those issues, posed a workable solution,
i.e., whether it would be feasible to conduct widespread
special elections during a period of incalculable vacancies and
national chaos. By a vote of 4-3, the bill was reported out of
the House Administration Committee over the vigorous and
comprehensive dissent of the minority. While it is unnecessary
to repeat the substantive concerns enumerated in the minority's
dissenting views, it is important to emphasize its concern with
the process. The dissent argued that the ``bill's narrow focus
ignores broader questions of congressional continuity,'' and
recognized that proposals advocating a constitutional amendment
to address House vacancies ``if considered in the House, would
fall under the jurisdiction of the House Judiciary Committee.''
H. Rept. 108-404, pp. 12, 14. Yet H.R. 2844 has been tailored
so as to avoid the scrutiny that we believe is warranted by
this Committee.
At the markup of this bill, Chairman Sensenbrenner cited
the expiration of this Committee's sequential referral on
January 31, 2004 as an impediment to conducting hearings on the
broader issue of congressional continuity--including the
possibility of a constitutional amendment--before the Judiciary
Committee.\2\ Yet as early as September 2003, in testimony
before the House Administration Committee in support of H.R.
2844, Chairman Sensenbrenner indicated that there would be no
further consideration of proposals to address filling House
vacancies in the event of a national emergency in the 108th
Congress by this Committee. The sole hearing by this Committee
on this issue was held before the Subcommittee on the
Constitution during the 107th Congress on February 28, 2002.
H.J. Res. 67,\3\ ``Providing for the Temporary Filling of House
Vacancies,'' called for a constitutional amendment to authorize
the temporary appointment of individuals to fill House
vacancies in a time of national emergency. There was, however,
no Subcommittee markup or Full Committee consideration of the
measure.\4\
---------------------------------------------------------------------------
\2\ The Chairman also rejected the suggestion of Mr. Schiff of
California to seek, through the Chairman and the Ranking Member, an
extension of the referral from the Speaker.
\3\ H.J.Res. 67 was introduced by Rep. Baird of Washington in the
107th Congress.
\4\ The Judiciary Committee certainly is not loathe to consider
proposals to amend the Constitution. Since the attacks on 9/11, the
Judiciary Committee has held hearings or markups on at least three
proposals to amend the Constitution: May 21, 2003--Full Committee
Markup of H.J. Res. 4, Proposing an amendment to the Constitution of
the United States authorizing the Congress to prohibit the physical
desecration of the flag of the United States; May 1, 2003--Subcommittee
on the Constitution Markup of H.J. Res.22, the ``Balanced Budget
Amendment;'' March 6, 2003--Subcommittee on the Constitution
Legislative Hearing on H.J. Res. 22, the ``Balanced Budget Amendment,''
and May 9, 2002--Subcommittee on the Constitution Legislative hearing
on H.J. Res.91, the ``Victims Rights Amendment,'' a Proposed Amendment
to the United States Constitution.
---------------------------------------------------------------------------
Moreover, much has happened since the Subcommittee hearing
on H.J. Res. 67. Several bills have been introduced in the
House and the Senate urging a constitutional amendment. Also,
significantly, the Continuity of Government Commission, a joint
project of the American Enterprise Institute and the Brookings
Institute, after months of study, issued a report in May 2003
recommending an approach totally at odds with H.R. 2844.
Instead, the Commission concluded that the better approach was
to pass a constitutional amendment to address mass vacancies in
the Congress. The Commission was headed by honorary co-chairs
former Presidents Jimmy Carter and Gerald Ford, and co-chairs
Lloyd Cutler and former Senator Alan Simpson. Its members
consisted of a diverse group of public servants (including
former members of the House and Senate) such as Kenneth
Duberstein, Thomas Foley, Charles Fried, Newt Gingrich,
Nicholas Katzenbach, Kwesi Mfume, Leon Panetta and Donna
Shalala. While we do not suggest that this Committee simply
accept the recommendations of an outside panel, no matter how
distinguished, of experts and scholars, we do believe that it
is our obligation to review, consider and evaluate all
available research on this issue before casting a vote that
will define the stability or instability of our democracy for
years to come.
After September 11, 2001, the unimaginable have become
imaginable. A constitutional amendment to address the now
imaginable circumstance of massive House vacancies may or may
not be necessary. What is necessary, however, is that this
Committee assumes its responsibility to vet seriously and fully
the wide array of proposals, and their implications, to fill
House vacancies in the event of a national calamity. Our
obligation to our constituents, indeed to our democracy,
requires no less. Because the Committee has opted instead to
rush through what may be an ill-advised statutory fix, we
dissent.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Zoe Lofgren.
Martin T. Meehan.
William D. Delahunt.
Anthony D. Weiner.
Adam B. Schiff.
Linda T. Sanchez.
Additional Views
Several proposals have been introduced to address the
difficult issue of congressional succession, the procedures
that should be in place in the eventuality that a substantial
number of Members must be replaced in a short period of time.
Such an eventuality would likely be the result of a devastating
national emergency, such as a large scale terrorist attack.
Unfortunately, after September 11, such an attack is no longer
unthinkable.
In addition to being difficult, this is a issue central to
our democracy that places notions embodied in our Constitution
at odds with one another. The Framers believed in a ``people's
House,'' directly responsive to the public because it is
directly elected by the public. However, fundamental to the
Constitution is also the necessity of checks and balances--
ensuring that there will not be an unchecked Executive
necessitates a constantly functioning Legislative branch. Thus,
replacing a large number of House Members quickly may require
forgoing or modifying existing procedures for direct elections.
Resolving this constitutional quandary may require the
preemption of state laws governing the time and manner of
holding special elections, the appointment of congressional
successors by a state executive, or the designation of
successors by Members of Congress.
This bill attempts to preserve the system of direct
election by making only minimal changes to state election laws
and continuing to allow the public to elect the ``people's
House.'' The Chairman reached out to me to cosponsor the bill
and, because of its goal of preserving direct election and my
general opposition to amending the Constitution, I am an
original cosponsor of the bill. Critics have made the argument
that such minimal changes, however, may fall short of providing
a workable solution. Among other things, they assert that 45
days would be an insufficient amount of time for most states to
hold special elections and that the interim 45 days would be
too long a period of time for the nation to be without a
functioning House.
Critics have proposed Constitutional amendments that would
provide for temporary appointments to the House and proposals
to change House rules allowing for the admission of ``emergency
delegates'' to the Committee of the Whole and the pre-
designation of ``interim successors'' by Members. Each of these
proposals has substantial merit. However, these proposals may
be criticized as being too unwieldy to be passed by Congress. A
Constitutional amendment, for example, requires the assent of
\2/3\ of the Congress and three-fourths of state legislators.
This process is intended to be difficult and the Constitution
is rarely amended.
Because of the very nature of this issue--ensuring a fair
and nonpartisan process for succession--I believe it cries out
for a bipartisan consensus and careful consideration.
Unfortunately, to date, there are too many unanswered questions
about this bill and too much opposition against it. I must,
therefore, reluctantly conclude that there has been
insufficient consideration and a resultant lack of consensus.
I, therefore, voted against this bill in Committee and will
continue to oppose it until a broader consensus is reached.
John Conyers, Jr.