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H.R. 2844, The Continuity in Representation Act: Ensuring that the House of Representatives Remains the People's House
Thursday, April 22, 2004
Introduction
Ever since United Flight 93 crashed in a Somerset County, Pennsylvania field instead of the Capitol on 9-11, the unthinkable has been all too realistically possible: terrorists could seek to decapitate the Nation’s government. Today, House Republicans endorse the Continuity in Representation Act, H.R. 2844, to ensure that our representative government will survive any such attack.
The Need for Action
Beginning immediately after the 9-11 attacks, the House Policy Committee led a bipartisan effort to consider changes in House rules, existing law, and even the U.S. Constitution to maintain continuity of the Congress after a mass-casualty terrorist attack. That effort was formalized in May 2002, when Speaker Hastert established the Continuity of Congress Bipartisan Working Group, with the Policy Committee Chairman as its head. Together with Co-Chair Rep. Martin Frost (D-TX), Chairman Cox and the 11-member group devoted a year to addressing government continuity issues, resulting in recommendations to the Speaker on the means to ensure continued operation of the House in the event of such a catastrophe.
Specifically, the Working Group recommended, and the House subsequently adopted, a series of changes to the House rules to promote continuity in the event of a crisis. In addition, the Working Group introduced H.Res. 559, asking each state to reexamine its existing laws governing special elections and to make appropriate amendments so that, in the event of a catastrophe, vacancies in the House could be filled on an expedited basis. The resolution passed the House unanimously on October 2, 2002.
Since the House unanimously expressed its support over one year ago for expedited special elections in the event of a catastrophe, our entreaty to the States has resulted in only one—California—acting to make these needed changes. Because most states have not acted, the House—and the Nation’s government—remain unacceptably vulnerable should we suffer a successful terrorist attack. There is an urgent need to take the next step.
H.R. 2844—Ensuring the Continued Operation of the People’s House
In the year following 9-11, the Speaker’s Bipartisan Working Group on the Continuity of Congress met with scores of congressional experts, both within and outside of government, to determine the best institutional responses to a terrorist mass murder of the House membership. The Working Group established two guiding principles. First, we should look to achieve the least constitutionally intrusive means of ensuring continuity. This means that we should rely first on rules changes, next on statutory changes, and only as a last resort on amending the Constitution. Second, we should strive to maintain the essential character of the House of Representatives, most particularly its democratic authority derived from the fact that all Members are elected by the people.
Following the final report of the Working Group in late 2002, the enactment of H.Res. 559, and the adoption of House rules changes in 2002 and 2003, the Committees on House Administration, Rules, and the Judiciary have all conducted hearings into the remaining questions surrounding re-population of the House after a successful terrorist attack. The result of those extensive deliberations is H.R. 2844, the Continuity in Representation Act.
H.R. 2844 was introduced by Rules Chairman and Continuity Working Group Member David Dreier (R-CA). Its purpose is to give effect to the resolution which passed unanimously in the last Congress: to provide for expedited special elections to fill vacant House seats in extraordinary emergency situations.
Under the legislation, such extraordinary circumstances would be recognized to have occurred if the Speaker announced that the number of vacancies in the House exceeds 100. At that point, a special election must be called within 45 days (unless a previously scheduled general election is already planned to occur within 75 days). Within 10 days of the 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 legislation also provides for judicial review of the Speaker’s announcement, by a three-judge panel similar to the one convened to review the Bipartisan Campaign Reform Act.
By enacting H.R. 2844, Congress is clearly acting within its constitutional authority. Regulation of the time, place and manner of federal elections is a power placed expressly within the control of the Congress by Article I, Section 4, clause 1 of the Constitution. It states: “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. . .” As Alexander Hamilton wrote in Federalist 59, in discussing Article 1, Section 4, clause 1: “[The Constitutional Convention has] reserved to the national authority the right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety. Nothing can be more evident, than that the 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.”
Moreover, the legislation is exceptionally narrowly tailored, providing for the prompt and orderly filling of vacancies in the event of an extraordinary catastrophe which threatens the very viability of the House. At the same time, it protects the essential republican character of the House of Representatives as a representative body composed only of those directly elected by the American people.
At all times since the ratification of the Constitution, every Member of the House has been elected. Unlike members of the Senate—all of whom were selected by the States until the ratification of the 17th Amendment, and who are still appointed in the event of a vacancy—no member of the House has ever taken office without the consent of the voters in a congressional election. This is not mere historical accident; it is the essence of the Founders’ design to establish a people’s House. As James Madison, the “Father of the Constitution,” stated in Federalist 52: “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.”
The proposed legislation does not prevent the consideration of further proposals, such as a constitutional amendment, to ensure the continuity of the Congress—and indeed it is thoroughly consistent with that possible approach. For example, a proposed amendment to the Constitution to provide for the temporary appointment of House members, which appointment would last only until such time as a special election is held, would be neatly complemented by H.R. 2844. Other proposals, including further rules and statutory changes, will remain possible after the enactment of this legislation. One likely candidate for subsequent passage is H.R. 2319, which would amend the Presidential Succession Act by clarifying the manner of succession of the Speaker to the Presidency in the event that the offices of the President, Vice President, and Speaker are simultaneously vacant.
H.R. 2844 is urgently needed to effectuate the purposes of H.Res. 559, already unanimously adopted by the House. It is possible that a constitutional amendment might also be deemed necessary to ensure that the House reconvenes as quickly as possible after a terrorist attack. But only after the particularly careful drafting, deliberation, and debate that a constitutional amendment warrants will the House be able to proceed to its consideration. It is also certain that any amendment calling for the temporary appointment of Representatives would include provisions for the election of Representatives as soon as possible. H.R. 2844 ensures that this will happen now.
Conclusion
Since the terrorist attacks of September 11, 2001, the United States has made remarkable strides in fighting, and winning, the war on terror. By creating the Department of Homeland Security, the President and Congress engineered the largest reorganization of the Federal government in 50 years, for the purpose of enhancing our security. President Bush, with the strong support of the Republicans in Congress, has put the terrorists on the defensive—destroying the al Qaeda client government in Afghanistan and toppling the dangerous and destabilizing Baathist regime of Sadaam Hussein in Iraq.
Notwithstanding these successes, the war on terror is far from over. There are many terrorists still bent on demoralizing and devastating the United States and other freedom-loving countries. The 2001 anthrax attacks on the Congress, and the March 2004 terrorist attacks in Madrid aimed at disrupting that nation’s elections, underscored anew that among the aims of this fanatical nihilism is to subvert our form of government.
H.R. 2844 will go far toward ensuring the continuity of the House in the event of a catastrophic terrorist attack on the Congress. It maintains the fundamental nature of the institution. It is a reasonable, urgently needed, and effective proposal that merits our support.
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