In 1998, according to the 9/11 Commission report, Osama bin Laden, Khalid Sheik Mohammed, and Mohammed Atef met near Kandahar, Afghanistan, to draw up a list of targets for the attacks that would ultimately take place on September 11, 2001. There were differences of opinion, naturally: Bin Laden wanted to destroy the White House and the Pentagon, while Sheik Mohammed preferred to go after the World Trade Center. But all three men agreed on one target: the Capitol building.
Had it not been for the passengers on Flight 93, hundreds of members of Congressas well as their staffsmight have been killed. As al Qaeda understood, that could have thrown Americas entire political system into chaos. If Congress had been unable to make the constitutionally required quorum of more than half of all seats, the legislative branch might well have had to largely shut down, with catastrophic consequences for the nations ability to govern itself and develop a response to the attacksand perhaps even for Americas democratic tradition.
Without Congress, the president might have had to declare martial lawat least until the states could hold constitutionally mandated special electionsfurther traumatizing an already reeling population. Certainly, the executive branch would have been in sole control of carrying out all the critical tasks that government would be faced with: appropriating money to fund the war, rapid rebuilding, and other executive-branch operations; and passing emergency security orders, among other activities. Without the backing of Congress, those steps would have lacked legitimacy in the eyes of large sectors of the American public and the rest of the world. And in the long term, the precedent would have diminished the standing of the legislative branch, making it that much easier for the White House to rule unilaterally in the future. As the bipartisan Continuity of Government Commission (COGC) put it in a 2003 report: If anyone doubts the importance of Congress in times of crisis, it is helpful to recall that in the days after September 11th, Congress authorized the use of force in Afghanistan; appropriated funds for reconstruction of New York and for military preparations; and passed major legislation granting additional investigative powers and improving transportation security. In the event of a disaster that debilitated Congress, the vacuum could be filled by unilateral executive actionperhaps a benign form of martial law. The country might get by, but at a terrible cost to our democratic institutions.
Soon after 9/11, the problem of how to ensure the continuity of Congressand in particular, the House of Representativesbegan to receive attention in Washington. The following year, two Beltway think tanksthe center-left Brookings Institution and the right-wing American Enterprise Institutecollaborated to create the COGC, a bipartisan group of respected former elected officials and congressional scholars charged with devising a plan to fix the problem. Gerald Ford and Jimmy Carter were honorary co-chairs, while the scholarly heavy-lifting was done by former White House counsel Lloyd Cutler, as well as by Norman Ornstein and Thomas Mann, congressional experts at AEI and Brookings, respectively. Newt Gingrich also played a role.
The commission concluded that the threat of one or both houses of Congress being decimated by a terrorist attack was so grave as to require urgent action. There is a gaping hole in our constitutional fabric that would allow large numbers of vacancies in Congress to continue for a significant period of time, the report stated. The threat of terrorism remains high, and it is clear that our governing institutions remain prime targets. It is an urgent matter to repair that constitutional hole. The only effective way to do that, the commission made clear, was to allow governors to appoint special replacements for members of Congress killed in an attack. The replacements could be term-limited to the length of time necessary to hold new elections. But that could still be as long as six months, since, even under peaceful conditions, say election experts, the business of holding primaries, campaigning, printing ballots, and reserving space in churches and school cafeterias simply takes time. Without appointed replacements, Congress would be vacant for this period, and the president unchecked.
Calling the House the most constitutionally vulnerable of the three branches to continuity problems, the commission recommended a constitutional amendment giving governors the power to appoint emergency replacements until elections could be held (thanks to the 17th Amendment, senators can already be replaced by gubernatorial appointment). To be sure, constitutional amendmentswhich take years to pass through the states and require a determined political effortare momentous things. But if the clause ever had to be invoked, the times would, by definition, be unprecedented. By the commissions recommendation, it would come into effect only if one half of members of Congress were killed.
The commissions suggestionssober-minded and rational as they werehad one major flaw that worked against their chances of being enacted: No one apart from a few op-ed columnists really cared. And, of course, the commission itselfunlike, say, the 9/11 Commissionhad not been created by Congress or the White House, and had no actual authority. It was nothing more than a group of knowledgeable, concerned, well-connected citizens who felt strongly about the issue and wanted Congress to pay attention. That made the continuity movement easy to caricature as an elitist scheme to rob the people of their constitutional right to elect their representatives. Congressional leaders who opposed the idea could easily sideline the effort without paying a political price.
Five years after the 9/11 attacks, Congress has allocated billions of dollars to ensure the uninterrupted operation of the executive branch, and government agencies at all levels have taken extensive steps to plan for their survival. But Congress has made no plans for itself. The story of how and why that happened illustrates the challenges of achieving progress on political causesno matter how sensible, and how urgentthat lack vocal, organized voting constituencies, and that offer no obvious political benefits to those who take them on. It also shows how one powerful lawmaker can manipulate the legislative process to kill initiatives he opposes. And it offers yet another example of how the Republican Congress has elevated hyper-partisanship and narrow political maneuvering above the public interest.
Framers and wafflebottoms
The framers intended the House of Representatives to be the chamber that most directly reflected the popular will. They required in the Constitution that House members be popularly electeda stricture that raised, even then, the question of how to quickly replace large numbers of representatives in the event of an emergency. It was a problem the founders never solved: A proposal at the Convention of 1787 to allow governors to make replacement appointments was rejected for removing the appointment too far from the people, as James Wilson put it, but no other action was taken to address the quandary.
The issue arose more urgently during the Cold War, as the threat of a nuclear exchange with the Soviet Union grew. Although a functioning Congress could have acted as a check on executive power in the wake of an attack, both the Eisenhower and Kennedy administrations strongly supported efforts to ensure continuity. According to David Krugler, a University of Wisconsin historian, President Eisenhower was intensely concerned about the problem of continuity, and had an emergency executive order writtenwhich he carried in a special satchel of similar ordersallowing him to declare a separate meeting place for Congress, outside the District of Columbia. And Kennedys deputy attorney general, Nicholas Katzenbach, testifying before a House Judiciary committee hearing in 1961, called the issue of continuity an extremely important matter that should be provided for by constitutional amendment.
Congress itself, thoughand especially House membersfelt more ambivalent. Some representatives were concerned that allowing governors to appoint legislators could change the partisan composition of the House. But perhaps more important, many House members feared that supporting such legislative action might prompt their constituents to ask why their elected representatives were going to such extraordinary lengths to ensure the future of their own institution, while paying less attention to the security of ordinary Americans around the country. This was not an unreasonable political concern: In 1950, the Truman administration had introduced a bill that sought to ensure the continued functioning of major government departments by dispersing federal office campuses outside downtown Washingtononly to see it rejected after some House members denounced the notion of worrying about protecting wafflebottoms (a derisive term for federal bureaucrats) while American troops were fighting and dying in Korea. As a result, legislative efforts, though frequent, gained little traction. Between 1950 and 1959, according to Krugler, Congress considered 19 separate bills designed to provide for the appointment of House members in an emergency. Three were passed by the Senate, but none became law.
When the 9/11 attacks brought renewed interest in the problem, many of these same political attitudes burst into the open. Conservative activists united against the notion of DC-based political elites usurping the peoples right to elect their representatives. The right-wing firebrand Phyllis Schlafly created the Coalition to Preserve an Elected Congress andignoring the COGCs carefully bipartisan compositionderided the commission as an elite group of former Clinton advisers. Part of this opposition also reflected a fundamental ideological aversion to Congress in general. It should not be high on our worry list that the House couldnt pass bills until special elections are held, Schlafly argued during congressional testimony in 2003. Almost every year Congress goes about four months without passing anything significant.
Variations of this position found support even within Congress. Some House Republicans fervently opposed taking action, out of a desire to support the Bush administration in its bid to expand executive-branch power to fight the war on terror. For them, the prospect of Congress being forced into a subordinate role by virtue of its inability to quickly reconstitute itself was to be welcomed, not feared. There is not going to be anything for any member of Congress, any major decisions to be made during that period of time, argued Rep. Ray LaHood (R-Ill.) during a floor debate. We do not need to be around here. And, predictably, the Bush White Houseunlike the Eisenhower and Kennedy administrationswas in no hurry to lend support to any effort that could end up providing a check on executive power.
Perhaps most important, one powerful Republican committee chair was also implacably opposed to taking action. According to former Rep. Martin Frost (D-Texas), who led an informal House task force on the issue: We met a stone wall because the Republicans wouldnt face down Jim Sensenbrenner on this issue. Over his 27 years in Congress, the veteran Judiciary committee chairdescribed by The New York Times as a big-bellied curmudgeon with a taste for old Caddies, pontoon boats and enormous cigarshas established a reputation as a wily legislator, his style equal parts political principle and capricious cunning. Last year, after a witness before his committee compared Guantanamo Bay to a gulag, Sensenbrenner banged the meeting closed and walked out, gavel in hand, leaving the Democrats sputtering into their microphones. Says one Democratic Hill staffer, Hes the classic bully chairman.
On the continuity issue, Sensenbrenners position drew on the spirit of the Founding Fathers. As Sensenbrenner summed it up in a 2004 floor debate: Elections, no matter how imperfect they are, are much better than having an appointed House of Representatives where the loyalty would be nowhere but to whomever (sic) made the appointment.
But to proponents of taking action, Sensenbrenners dedication to the Houses status as a pure reflection of popular will appeared to increase the risk of ending up with no working House at allmaking it less principled than perverse. Is it reasonable to believe, asks Rep. Brian Baird (D-Wash.), one of the early leaders of the continuity movement, that the framers would have preferred an empty House to a temporarily unelected one? One of the paradoxes is saying, we should never violate your right to elect your representative, and that is more sacrosanct than your right to have any representation, says Baird. If you really want to say, well, Im dedicated to the traditions of the House, so dedicated that I prefer there not be a House in a crisis, well, thats a weird dedication.
Sensenbrenner used all of his considerable legislative clout to sideline any efforts to ensure continuity. In October 2001, Baird, working with Ornsteinwho had written a series of columns designed to raise awareness of the problemdrew up a measure that would have required members of Congress to make a list of successors from which the governors of the states would choose. This would ensure that Congresss partisan breakdown remained unchanged, and would increase the chances of the new members being qualified. But the specifics were less important than the notion of opening a conversation on the issue. Bairds plan was, he says, a starting point.
Or an ending point. Sensenbrenner flatly refused to hold any hearings on Bairds amendment, let alone move it to the floor for a vote. Even the single hearing that he allowed on the general issue, in February 2002, turned out to be a sham. Three of the four witnesses (the fourth being a Congressional Research Service staffer who gave only a historical overview), all three attorneys and constitutional scholars, testified in favor of emergency appointments, stressing the need to repopulate the House at the greatest speed practicable. But the hearings produced no follow-up: Ornstein recalls that Rep. Steve Chabot (R-Ohio), a close Sensenbrenner ally who chaired the hearings, told him: Sensenbrenner had said hold one hearing and thats it. Sure enough, when a reporter later asked Chabot if he planned to hold another, he replied, I probably ought to wait and talk to Chairman Sensenbrenner about that.
Sensenbrenner wasnt acting alone. With an important section of their base defiantly opposed, and no powerful interest group pushing for action, Republican congressional leaders calculated that there was little political upside to the issue. In March 2002, House Majority Whip Tom DeLay (R-Texas) made clear that he had no plans to bring continuity legislation to the floor. House Republicans even resisted the formation of an informal working group intended simply to discuss the issue and educate members. When a petition from more than 200 members of Congress forced them to relent, the groups ranking Republican, Christopher Cox, acting on the leaderships orders, made sure to bury all far-reaching approaches, including Bairds, at the bottom of the groups agenda, according to Frost. The group disbanded a year later, having achieved little.
Still, as 2002 wore on, other GOP legislators were growing anxious about the perception that they were entirely ignoring a crucial component of planning for a terrorist attack. So Sensenbrenner, aware that simply doing nothing at all was no longer an option, developed an alternative approach: an unfunded mandate ordering the states to hold special elections within 21 days, with ten days for party leaders to name candidates (there would be no time for primaries) and a week and half for campaigning. This was exactly the approach the commission had warned against, since it simply didnt offer enough time to hold legitimate elections. Further, the bill included no funding for the states, no benchmarks to be met, nor any consequences for failure. It simply ordered states to hold special elections within 21 days, despite the fact that many would be unable to complymeaning Congress would remain empty. In short, Sensenbrenners approach would do almost nothing to ensure a functioning House in the wake of an attack. Baird calls it not even a Band-Aid. A Band-Aid is actually a tangible substance that does some good.
But Sensenbrenner easily got the bill through his committee on a party-line vote, with almost no discussion. Democrats denounced the process as rushed and high-handed, but there was little they could do. On the floor, Republican leaders limited the debate to one hour, while Sensenbrenner made it clear that no other continuity bill would be in play. That made many members nervous about going on record against the only effort to address the problemeven if the effort was grossly inadequate. The bill passed overwhelmingly.
It met stiffer opposition in the Senate from Sen. John Cornyn (R-Texas), who endorsed the findings of the COGC, and from Sen. Robert Byrd (D-W.Va.), who objected to the way it had been rammed through the House. But Sensenbrenner responded by simply attaching it to an appropriations bill the following year, making it all but impossible to oppose.
There was one more thing Sensenbrenner needed to do to put a final nail in the coffin of efforts to ensure continuity: In June 2004, he agreed to hold a vote on Bairds measure. The timing was perfect. By having already passed his own bill, Sensenbrenner had effectively created the perception that the problem was solved. Baird, it now appeared, was tinkering with the Constitution without reason. Again, Republican leaders allowed only a rushed debate, and when Rep. Dana Rohrabacher (R-Calif.), with Bairds encouragement, tried to introduce an amendment to the bill, he was rebuffed. A straight up-or-down vote on a bill most members barely understood was all that would be allowed. The leadership made the decision, Rohrbacher told me. On a largely party-line vote, Bairds bill was defeated.
To die for
Since then, the momentum has largely stalled. Even Baird, whose enthusiasm for the issue at times made him appear to colleagues as slightly unhinged, has largely moved on to other topics. Ornstein occasionally produces another distressed column. Our ability to avoid new attacks has softened the perceived need for change. The COGC has slowed down considerably as well, in part because of the death of Cutler last year.
Thats left amendment supporters without much hope. Baird, a former clinical psychologist, compares opponents of action to parents who avoid signing a will for fear of contemplating death. Its interesting to me how many of my colleagues think that they are not going to die, he says. Baird should know. In his previous career, he often counseled terminally ill cancer patients trying to come to terms with their mortality. In the hospital setting, though, Bairds bedside manner and skill were usually sufficient in helping patients along. That hasnt been the case in Washington. In clinical work, I get to write the rules a little bit, says Baird. You dont have to deal with a Rules committee, a Speaker of the House, or a Judiciary chairman.