Eight years after the 9/11 attacks, the government has taken broad steps to make Americans safer and to cope with the impact of future disasters.
But it has done little to deal with the possibility that a similar attack could wipe out most federal elected officials, which could have happened in 2001 if brave passengers hadn’t diverted a hijacked plane headed for the Capitol.
Presidential succession is clear, with the speaker of the House, Senate president pro tempore and Cabinet secretaries following the vice president. The situation regarding Congress remains murky. The Constitution does not sanction temporary appointments to fill House vacancies; its authorization for naming “temporary” senators has produced a range of state procedures, from appointments up to two years to barring any at all.
Even Texas, which has one of the better procedures — a short-term appointment followed by a fairly prompt election — has a system whose timing is prone to manipulation by the retiring senator and governor.
A 2003 study by the American Enterprise Institute’s bipartisan Continuity of Government Commission recommended a constitutional amendment giving Congress the power to provide temporary appointments to both houses in the event of massive vacancies. But a recent AEI panel discussion noted that interest in action has diminished over the years.
The inadequacy of procedures affecting Senate seats has shown up recently by speculation over Texas Sen. Kay Bailey Hutchison’s announced resignation plans, partisan maneuvering over the late Sen. Edward Kennedy’s vacant Massachusetts seat and the fact that four of the five biggest states soon will have unelected senators.
But the House situation is potentially more serious, in part because members have resisted authorizing interim appointments.
A constitutional amendment proposed by Rep. Brian Baird, D-Wash., could be the fix. It would authorize the House speaker and Senate president to fill vacancies from a list of three designees by each House or Senate member “if a significant number of members were killed, incapacitated or disappeared.” States would be required to hold special elections “as soon as possible.”
A simpler alternative might be to authorize governors to fill House and Senate seats for a set but limited period, perhaps 90 or 120 days, and require appointments from the deceased lawmaker’s party. That would fill vacancies promptly and create uniform guidelines.
Congress has taken some lesser steps that some experts fear would create more problems than they would solve.
For example, the House amended its quorum rules to allow action by a majority of those “chosen, sworn and living,” rather than a majority of its 435 members. Yet this could permit 16 House members to act if only 31 survived an attack.
“Not only are these rules changes likely unconstitutional, they are also a bad idea,” the AEI draft report declares.
Congress has required states to hold elections within 49 days if there are more than 100 House vacancies. But that hasn’t been fully implemented and really wouldn’t fix the main problem: the lack of a quick way to ensure that Congress can function.
AEI research fellow John Fortier notes that so short an election period would likely mean reduced turnout, though it would reduce the likelihood of a non-elected majority taking major action.
Five states require that appointees be of the same party as the deceased senator; a national standard might prevent the shenanigans taking place in Massachusetts.
In 2004, Democratic legislators voted to forbid Republican Gov. Mitt Romney from naming John Kerry’s successor if the Democratic senator were elected president and instituted a special election. But before he died, Kennedy asked lawmakers to permit the current Democratic governor to name an interim senator, presumably a Democrat.
It shouldn’t require another 9/11 to bring action.