Proposing an amendment to the Constitution of the United States regarding the appointment of individuals to fill vacancies in the House of Representatives.

Mr. Speaker, would the gentlewoman be interested in joining me in a colloquy?

I appreciate very much the comments of the gentlewoman, and I was intrigued by one thing she said. She said that even temporary appointments, I will paraphrase briefly here, would violate the entire purpose of the House of Representatives.

My understanding of Madison's approach was that there were more elements to having a house of representation than mere election, as important as that is, but also the role of checks and balances, the role of proportionate representation, the division of authorities between the legislative branch and the executive branch.

Madison specifically said: ``The accumulation of all powers, legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elected, may justly be pronounced the very definition of tyranny.''

What I would like to ask the gentlewoman is, if we have no House of Representatives, less than a quorum, do we have an alternative to the concentration of the power in the executive branch under current law?

I yield to the gentlewoman from Michigan.

Mr. Speaker, reclaiming my time, I appreciate this need to exchange, because this is exactly what we need to do. During the 45-day period, as I understand it, the gentlewoman is saying the only check on the executive would be the threat of impeachment.

Does the gentlewoman believe that is consistent with the Framers' intent, when they wrote all of article I and purposefully chose article I as the description the legislative branch, or does she believe the Framers' intent was to say the executive can have carte blanche to run the country as they might, but 45, and possibly 75, days later under the bill the gentlewoman coauthored, the Nation has to wait 75 days for impeachment as a check on the executive?

Mr. Speaker, reclaiming my time, if I may, I am not disputing that. The point before us here, we have passed that bill. The point before us here is what happens in the 45 days? I think there may be grounds to dispute whether you can have an election or not. But the point of this legislation is to say how do we get this Congress up and running promptly.

Let me give you a scenario and see if you are comfortable with it. John Ashcroft said last week or the week before that high-profile targets include this summer the Democratic convention and the Republican convention. I will take him at his word.

If it is true that we are a high-profile target, and if you are at the Republican convention or we are at the Democratic convention and terrorists attack, let us suppose they attack during the President's speech at the Republican convention, and the president is killed, heaven forbid this should happen, if the President and Vice President are killed and a number of my good friends on your side of the aisle perish, of necessity at that point the House will have to reconvene, there will be a new majority, hence a need to elect a new Speaker. Presumably at that point the Democrats control the House of Representatives, presumably we will elect a Democratic Speaker, and, under the law of succession of 1947, that person is now in line for the Presidency of the United States. That is my understanding of the status quo as it exists in law today.

I would just ask the gentlewoman if she is comfortable with that or disputes that is the status?

Mr. Speaker, reclaiming my time, the legislation that I put forward, actually it would obviate, not necessarily override. I really want to underscore that point. The chairman has repeatedly, really since day one of this, I think, misrepresented this. He misrepresented it in his opening comments. He said the question before us, in essence, is whether you will have an elected Congress or an appointed aristocracy.

The true question is, will you have any Congress or not? Not my bill, not the bill of the gentlewoman from California (Ms. Lofgren), not the bill of the gentleman from California (Mr. Rohrabacher), not the bill of Senator Cornyn, not any of the bills put forward would in fact ban elections, as the chairman repeatedly says. It is deeply frustrating to me to have a matter of this importance be misrepresented.

No one disputes, and I firmly agree with you, that the mechanism to replace House Members should be direct election, ideally, and we should have them as promptly as possible. But if we are so concerned about an aristocracy and appointment not responsive to the people, are you not equally concerned that a party mechanism for selecting a candidate implies in itself some degree of potential beholding to those who appoint it? Is the gentlewoman concerned about that at all?

Mr. Speaker, reclaiming my time, I thank the gentlewoman for her time and appreciate her engaging in this colloquy. I sincerely do.

Mr. Speaker, the reason I asked the gentlewoman to respond is this is what we really need to do with this bill. The gentleman from Wisconsin (Mr. Sensenbrenner) would claim that he brought this up at our request. In fact, we did not request this fashion of bringing this legislation up. What we requested was that all measures to provide for continuity be brought up for debate, including my own, the bill of the gentleman from California (Mr. Rohrabacher), the bill of the gentlewoman from California (Ms. Lofgren), the bill of the gentleman from Connecticut (Mr. Larson), the bill of Senator Cornyn in the Senate, two Republicans on that list, by the way, several Democrats, that they all be brought up and we have full discussion.

I would note for the record that I see on the House floor now about six colleagues, maybe seven. Two things concern me about that: first, if we really take this seriously, I believe we ought to all take it seriously. I do not think for a second my bill is perfect. I think there is merit to the other legislation. But I do not think we are going to get to a solution unless we grapple with this issue, unless we take it seriously.

The second thing that concerns me is let us suppose this random group of survivors here, this six or seven on the floor, are the group of survivors. Under the Constitution, that is not a quorum. The Constitution, in my judgment, is rather clear that a quorum is a majority of the Members, but House Rules state it is a majority of those chosen, sworn, and living.

Importantly, would the people of the United States of America believe that the seven or eight of us here now, relatively randomly chosen if we were survivors, are consistent with the representational nature of this body? It is not just the people's House because it is directly elected, it is the people's House because it deals with proportionate representation. It is the people's House because of prompt reelections.

Would the eight of us here right now be sufficient to send this Nation into war? Would the eight of us be sufficient to impeach a President? Would we be sufficient to select one of our own as the Speaker of the House, who would then become the President of the United States? I noticed in her comments, in response from my friend from Michigan, not once did she truly address what happened in that 45 days.

We talked about the elections, and I appreciate the importance of that. Let

me, if I may, address some of the myths that have been perpetrated by the opponents of this bill.

First of all, the myth that we have already solved the problem. We have not solved the problem. We have provided for special elections in 45, possibly as long as 75, days. But this notion that it was an elected House, not an appointed House that passed legislation, is rather absurd, when the choice is there might be no House at all to pass legislation.

Secondly, this notion that continuity is somehow not urgent, that we do not have to move forward with this. It has been 3 years. On September 10, 3,000 of our fellow citizens had no idea they were living their last day, yet they were.

The notion that temporary appointments somehow subvert the right to election. Again, and I underscore it, nothing in any of the legislation put forward would take away the people's rights to election.

When the chairman said, and I thought it was rather remarkable, that my legislation explicitly in the Constitution authorizing the Congress to deal with the matter of incapacity, that that takes away our right to deal with incapacity, I found that rather absurd, to say the least. The legislation before us says that Congress can deal with incapacity statutorily. How does that ban our right to do so?

The myth, which is just so remarkable, that the appointees would be irresponsible to the general public does a profound disservice to the existing Members of the House of Representatives. Indeed, I find it an insult.

To believe that the people that sent us here with the authority to send their children to war, as we have chosen to do, to tax them or give them back their taxes, to impose any number of legislative remedies and sometimes problems on this country, but then the moment it comes time to make one of our most profound decisions, who would replace us in a catastrophe to carry on this institution, that moment, suddenly we lose capacity of our senses.

It not only insults us, it insults those who we might nominate to replace us.

By coincidence, not 30 minutes ago I met with Don Bonker, a gentleman who represented my district a little over a decade ago, a distinguished statesman with outstanding international skills. Do we seriously believe that if I nominated Mr. Bonker to be my replacement that he would act irresponsibly to care for this country? And if you believe that impeachment is a worthwhile check on the abuse by the executive, why do you not also believe that a subsequent election would be a worthwhile check on Mr. Bonker's conduct if he were to act irresponsibly? The inconsistencies and illogic are breathtaking sometimes.

I want to do one other thing. My friend, the gentleman from Arizona (Mr. Snyder) is here; and I want to compliment him. It is rare in this body I find that we acknowledge that there may be a shortcoming in our own legislation and that an opponent of that legislation has pointed out a shortcoming. The gentleman from Arizona (Mr. Snyder) came to me this morning, raised an issue; and I think he has a good point. I would like to be able to fix that.

I would have liked the process such as we propose in the original rule where you debate things and then have time to amend it. I doubt that is going to be allowed. But I will say, and I appreciate the gentleman very much for raising the shortcoming, I will in future drafts, if we have the opportunity, endeavor to fix that.

But I would also say right now that, even with the shortcoming, I believe with all my heart that the bill we have before us today is superior by far to the status quo. So while I expect fully that we may not pass this bill, I will intend to bring it up with modifications.

Mr. Speaker, I thank the gentlewoman from California for the time.

I would just note that it was my distinguished colleague from Texas who, when we were given the opportunity, my colleague was asked for unanimous consent in the Committee on the Judiciary hearing to let me speak to my own bill. It was a UC request. All it needed was one member of their body to speak up and say no, and it was the gentleman from Texas.

On the one hand, the opponents of this legislation argue that we must have elected representatives. On the other hand, they suppress the rights of those elected representatives to speak to their own legislation.

Our 90 minutes are about up. I want to take a little bit of time, if I may, to thank the gentleman from Texas (Mr. Frost) and the gentleman from California (Mr. Cox) for their outstanding work on the Working Group. I would like to commend the gentleman from Connecticut (Mr. Larson); the gentleman from California (Mr. Rohrabacher) for his intelligent and thoughtful comments; the gentleman from Rhode Island (Mr. Langevin); the gentlewoman from California (Ms. Lofgren) for her leadership on this issue, the gentleman from California (Mr. Sherman) for his work on presidential succession matters.

I would also like to commend the work of the Continuity of Government Commission. We have spent 90 minutes on this issue today. The Continuity of Government Commission spent virtually a year on the matter. All of the members of that commission began saying we should not amend the Constitution, much like my friends on the other side have. Yet, to a person, they agreed at the end that we need to or we will be without the checks and balances so fundamental to our great Republic.

I also want to thank the opponents of this bill, the chairmen of the various committees. I also want to thank the ranking members.

The discussion today I think makes the proposal we will end up with a stronger proposal. That is part of the crucible of this institution. My fear, however, is that that crucible itself is in jeopardy. There will be silence on this floor if we perish or there will be chaos and discord as partisan rancor evolves in the aftermath when this lack of constitutional clarity emerges.

People have said what the American people would want, my friends on the other side. One of the things we do far too seldom here is go back to the people themselves and ask them. I would invite my colleagues to do as I have. Hold some town halls, go to some Rotaries or Kiwanis or Lions or whatever group you want and give it a fair question. Say here is the choice, a fair and balanced question. Say do you want in the aftermath of a crisis, do you believe we should have temporary appointments, nominated by the people you most recently elected and thereby are most likely of the same party and political ideology or would you have complete vacancy for 45, possibly 75 days? Ask them and see what they say. Ask them.

If my colleagues can come back to me and say that the people I talked to would say we would rather have no voice in Congress as our Nation goes to war and my sons and daughters are committed to a conflict, we would have no voice in Congress as our civil rights are usurped, we would like to have no voice in Congress as someone accedes to the presidency who was never elected but who was, in fact, themselves appointed, ask them, and I believe with great confidence they will tell my colleagues we would like a voice imperfect, indirect though that voice may be if unelected. At least they were appointed by the person most recently elected. At least the political makeup of this great body will be preserved. At least some of the most consequential decisions in the history of this country will be made under a model of checks and balances that, yes, Mr. Madison and Mr. Jefferson and Mr. Mason and the rest of the Founders found so essential.

Elections are sacred, but so, too, is representation. I would urge my colleagues to vote yes on the motion to recommit. Let us have a full and fair debate in the committee and bring back a still better bill.

Mr. Speaker, I apparently misspoke earlier when I mentioned it was the gentleman from Texas (Mr. Smith) who expressed objection to my opportunity to speak in the Committee on the Judiciary. I regret that. There was a member of the majority. I thought it came from the gentleman from Texas (Mr. Smith). I apparently was in error, and I apologize for the mistake.

Mr. Speaker, I thank the gentlewoman from California for yielding me this time.

The reason I think we need to recommit this bill, and it is rare, I think, for an individual who has authored a bill to suggest a motion to recommit, because when I called for the discharge petition to bring this bill to the floor, it was not just this bill. I wanted to bring many different approaches so we could fully discuss it.

The fundamental question I would urge the chairman of the Committee on the Judiciary and its members and this body as a whole to consider is this: it is a fine thing to defeat this legislation, and I respect the judgments of the people who may choose to do so, but you have yet today, or in the prior discussion of the chairman's own bill, answered the question satisfactorily for the American people as to what happens during the 45 or 75 days. People continue to say, no one should ever serve in the House who was not elected. We would all prefer that that be the case. But you have never said clearly and unambiguously, with clear-cut constitutional justification, how our government runs without a House of Representatives. You have yet to do so. You have offered pleasantries, reassuring promises; but you have never said how the country runs.

Madison did want the representatives to be elected, but he wanted there to be representatives. The people back home want to have representatives. Who will choose to send your kids to war? Who will choose to protect your civil rights? Maybe you can just rely on someone you do not know, an unelected representative whom you do not know. Maybe you can rely on that. And if they send your kid to war wrongly or usurp your civil rights, you can take great reassurance that 75 days later you can impeach them, assuming that one of their actions in the interim has not been to somehow reduce your right to do that.

You are rolling the dice, my friends. You are rolling the dice, and you have not yet put in place a solution. Mine may not be perfect, it is not; but let us, please, have an opportunity to revisit this issue and answer that question.

Mr. Speaker, pursuant to House Resolution 657, I call up the joint resolution (H.J. Res. 83) proposing an amendment to the Constitution of the United States regarding the appointment of individuals to fill vacancies in the House of Representatives, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on House Joint Resolution 83, currently under consideration.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, today we debate whether we should amend the Constitution of the United States to allow House Members to be appointed in the wake of mass vacancies caused by a terrorist attack.

After September 11, 2001, no one would deny the real potential of such a catastrophe striking this body, but fundamentally today's debate is about whether to preserve lawmaking by a House of Representatives elected by the people or to deny the right of elected representation during the most crucial moments of American history and allow lawmaking by an appointed aristocracy.

I would urge the membership to soundly defeat this constitutional amendment to preserve the People's House as an elected House and not as an appointed House.

Let us be clear, any constitutional amendment denying the right to elected representation would accomplish what no terrorist could, namely striking a fatal blow to what has always been the People's House. The House, unlike the Presidency and the Senate, are unique among all branches and bodies of the entire Federal Government. It is the only branch institutionally designed to always reflect the popular will through the legislation it passes.

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. All of Congress' powers under Article I of the Constitution are only legitimately exercised by an elected House.

H.R. 2844, the Continuity in Representation Act, which passed the House on April 22 by an overwhelming bipartisan vote of 306 to 97, with more Democrats voting for it than against it, will ensure that the House is repopulated by legitimate democratic means within a maximum of 45 days after an attack causes mass vacancies. Within those 45 days, any constitutional amendment that allowed lawmaking by appointed members would pose far more risks than benefits; and 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 when continuity is most important.

The Founders explicitly rejected the proposition that the appointment of Members is compatible with the American Republic. James Madison wrote

that ``it is particularly essential that the House should have an immediate dependence on, and an intimate sympathy with, the people'' and that ``elections are unquestionably the only policy by which this dependence and sympathy can be effectively secured.'' As Madison stated in his speech to the Constitutional Convention, ``a gradual abridgement of the right to elected representation has been the mode in which aristocracies have been built on the ruins of popular forms.''

This amendment is an abridgement of the right to elected representation. Contrary to the claim made by proponents of constitutional amendments, the President would not be unconstrained in its conduct immediately following a catastrophic terrorist attack. Of course, the President would be well within his constitutional authority to execute the laws in times of crisis.

However, the Founders also made it clear that the President would always be subject to impeachment by the House of Representatives, either a House operating on reduced membership or a later fully reconstituted House if the President abused executive authority at any time. And of course no law can be enacted solely by a House operating with a few Members alone. Further, the issue of incapacitated House members can be handled by changes to House rules. The Committee on Rules is already exploring those options.

Demonstrating 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, controlled both by Democrats and Republicans, throughout history has rejected all constitutional amendments authorizing appointed House Members sent to it by the Senate, even during the height of the Cold War. It is important to remember that the American people have always been able to elect their leaders, even during our Nation's darkest hour, the Civil War, when General Lee's Army was just a few miles away from this building.

Today we consider House Joint Resolution 83 sponsored by the gentleman from Washington (Mr. Baird). This proposed constitutional amendment contains all the flaws of amendments allowing the appointment of nonelected members, but it also has some unique additional problems.

The Baird amendment would not only override H.R. 2844, which already has passed the House by an overwhelming bipartisan vote, but it would forever strip the Congress of its discretionary authority to expedite special elections in emergency under its existing constitutional powers.

Let me repeat this. The amendment before us takes away the right of Congress under Article I, section 4, that expedites special elections in emergencies.

The amendment also requires House Members, prior to taking the oath of office, to submit a list of names to the governor that the governor can draw from in appointing that Member's replacement. This would subject candidates for Congress forever after to endless questions during their campaigns regarding whom they placed on the list and their connection to the candidate, and perhaps questions that can become embarrassing, creating needless distractions in what is supposed to be a clear contest between individual candidates.

And if a candidate did not tell the press who was on his or her list, the voters would not have a say on who the candidate's potential replacement should be. Such a list would also invite great mischief, including the placing of names on the list of those owed political favors.

Finally, H.J. Res. 83 provides that ``Congress may by law establish the criteria for determining whether a Member of the House of Representatives or Senate is dead or incapacitated.'' This provision would deny the House its existing authority under the Constitution that allows each House to adopt its own rules, an authority the Committee on Rules is already exercising, to address incapacitation by the rules, and needlessly involve the Senate in how the House operates. By doing so, it would unfortunately make addressing continuity of government more difficult than it already is.

Mr. Speaker, I doubt that any Member has faced a vote before that so clearly defines the principles stood for. Either you will vote to tear the fabric of our Constitution and deny the right of self-government under the laws passed by the people's chosen representatives, or you will vote to preserve the sacred right to elected representation.

That sacred right has endured since America's birth, through two World Wars, a Civil War, and now a shadow war waged by vicious haters of democracy. The terrorists would like nothing more than to see us rewrite our Constitution, the supreme law that comes closest to being our Nation's soul, to reflect their twisted vision of autocratic rule.

Around the world, both our friends and our enemies are watching. Vote this amendment down and show them what this House stands for and what it stands against.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the gentlewoman from Michigan (Mrs. Miller), who served two terms as Secretary of State and chief elections officer of the State of Michigan.

Mr. Speaker, I yield 3 minutes to the gentleman from Ohio (Mr. Chabot), the chairman of the Subcommittee on the Constitution.

Mr. Speaker, I yield 3 minutes to the gentleman from Indiana (Mr. Pence), a member of the Committee on the Judiciary.

(Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield myself 2 minutes.

Mr. Speaker, I would like to respond to the complaints about the process in the Committee on the Judiciary. It is true there were no hearings on the amendment of the gentleman from Washington (Mr. Baird) during this Congress. There was a hearing in the last Congress. There was not very much support for the notion of appointing replacement Members of the House of Representatives.

The gentleman from Washington (Mr. Baird) introduced House Joint Resolution 83. Until the day it was reported by the Committee on the Judiciary, it had no co-sponsors at all. Then there were two people who added their names to the joint resolution, including the gentleman from New York. There was

one amendment that was offered during the committee markup when the resolution was open for amendment at any point, and it was subsequently withdrawn.

When the Committee on Rules had its hearing last night, none of my Democratic friends offered any amendments for the Committee on Rules to consider. The gentleman from California (Mr. Rohrabacher) did offer an amendment.

I would point out that on November 15, 1983, when the Democrats were controlling the House, the House considered the Equal Rights Amendment, a very important constitutional amendment under suspension of the rules where there was only 40 minutes of debate and no amendments were offered. Two-thirds vote was required under suspension, as it is for constitutional amendments; and it was voted down.

But anybody who complains about this process where there is 90 minutes of debate, no amendments because it is a closed rule and, except for the gentleman from California (Mr. Rohrabacher), nobody offering any amendments, I think really ignores how the ERA was considered 21 years ago.

Now, finally the gentleman from Washington (Mr. Baird) filed a discharge petition. He wanted to bring the bill up out of the regular order, without any hearings, and without any committee consideration. What I did is there was a full markup at the committee where the amendment was open for amendment at any point. There was a vote in the committee. And the majority of the committee reported it out adversely.

So I think that anybody who says we need more hearings should not have been on that discharge petition.

Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from Virginia (Mr. Forbes), a member of the committee.

Mr. Speaker, I yield 4 minutes to the gentleman from California (Mr. Dreier), the distinguished chairman of the Committee on Rules.

(Mr. DREIER asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 3 minutes to the gentleman from California (Mr. Cox), the chairman of the House Republican Policy Committee.

Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from Florida (Mr. Feeney).

Mr. Speaker, I yield 4 minutes to the gentleman from Texas (Mr. Smith) a member of the Committee on the Judiciary.

Mr. Speaker, I yield 3 minutes to the gentleman from Georgia (Mr. Linder), a member of the Committee on Rules.

(Mr. LINDER asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 3 minutes to the gentleman from Virginia (Mr. Goodlatte), a member of the Committee on the Judiciary when he is not busy as chairman of the Committee on Agriculture.

Mr. Speaker, I am prepared to close debate if the gentlewoman from California will do so first.

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, we have debated this constitutional amendment for almost an hour and a half now. I think that the issue is very clear, and that is whether the House should maintain its function as a House that no one enters without first being chosen by the people, or whether there should be some procedure for the appointment of Members of the House should there be a catastrophe.

This is a philosophical difference, and it is a philosophical difference that no amount of hearings will be able to bridge. Maybe this constitutional amendment is improperly drafted, maybe it is not; but the thrust of the constitutional amendment is to allow the appointment of Members of the House of Representatives to act, supposedly in the people's name, when there is a national catastrophe of unspeakable proportions. Any action by appointed officials will lack the legitimacy of action by elected officials, and that is why I think it is important to reconstitute the House with people who come to Congress with a mandate from the people should there be a disaster that wipes out most of our government.

Now, let us look at what House Joint Resolution 83 proposes to do. It says that prior to taking the oath of office, every Member elected to the House shall designate at least two temporary successors and will send that list to the Governor.

Now, during a campaign, when candidates are running against each other, there is no way that candidates will be able to avoid telling the press and the public who they will name as temporary successors. And that would be a distraction that would take away from the issue of choosing a representative in Congress who, hopefully, will serve for the full 2-year term. And all kinds of extraneous issues, such as how much the temporary successor designee contributed or whether they have special interests and things like that, will end up becoming an ancillary, but very important, issue in the campaign and take the campaign's focus away from the issues that the candidates espouse in their platforms. And that would not be good for democracy at all.

Now, it puzzles me greatly that people who have said how important it is that we deal with this issue and deal with it properly are now attacking the Committee on the Judiciary and asking for a delay. On October 23 of last year, the author of this amendment, the gentleman from Washington (Mr. Baird), said ``The more urgent matter is to put the measure before the body.'' That is what is being done today, yet now I hear him and others saying, well, we need more hearings.

Well, Mr. Speaker, more hearings will just continue the debate on whether or not there should be appointed temporary successors or the House should maintain its tradition constitutionally of being entirely comprised of people who are elected by the voters of the various States.

The Continuity in Government Commission's report, which endorses appointed representatives, says ``The exact details of a solution are less important than that the problem be addressed seriously and expeditiously.'' Today we are debating that issue. We ought to send a clear message on whether this House wants to have temporary successors appointed, which will only be done by a constitutional amendment, or whether we want to continue our tradition of having people who come here to be elected.

I urge that the motion to recommit be voted down and that the amendment be voted down so we can show the people of America and the world what this House stands for and what it stands against. I ask for a ``no'' vote on the motion to recommit and a ``no'' vote on the constitutional amendment.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I rise in opposition to the motion to recommit.

Mr. Speaker, passing this motion to recommit will not serve to do anything but to continue a debate that has gone on for almost 45 years. In 1960, the Senate passed an amendment to allow for the appointment of House Members.

It was never voted on in the House of Representatives, and that was during the height of the Cold War when everybody was afraid that the Soviet Union would unleash a missile or massive numbers of bombers, and if we did not make it down to the bunker at the Greenbriar in West Virginia, the entire Congress would be wiped out. That was a crisis time, and the Congress did the right thing: It ignored what the Senate did in terms of appointment of House Members.

Sending this resolution back to committee is not going to change anybody's mind on whether replacement House Members should be appointed or elected. We ought to hit this issue directly on the nose and vote on the amendment after defeating the motion to recommit.

Now I am again very puzzled by the fact that many of the proponents of this amendment, including the Commission on Continuity in Government, and their spokesperson is Norman Ornstein of the American Enterprise Institute, have said that the problem should be addressed seriously and expeditiously. This is what we are doing today.

And the author of the resolution, who now wants to have more hearings, told Roll Call on October 23, 2003, that the more urgent matter is to put the measure before the body. The measure is before the body today. We ought to vote down the motion to recommit. We ought to have a clear vote on whether Members want to have temporary successors appointed or to preserve Madison's principle of having the People's House be elected by the people. It is time to stand up and be counted, not to have more hearings on the subject. Vote no on the motion to recommit and vote no on the joint resolution.

Mr. Speaker, on that I demand the yeas and nays.

Yes, Mr. Speaker, I do.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, 6 weeks ago the House of Representatives passed H.R. 2844, the Continuity of Representation Act of 2003, which was written and offered by the gentleman from Wisconsin (Mr. Sensenbrenner). This bill provides for the expedited special election of new Members of Congress to fill seats left vacant in extraordinary circumstances.

Under this bill, when such extraordinary circumstances occur, a special election must be called within 45 days. This bill was an important first step in addressing how the House continues to function in the event of a catastrophe, and that is why I voted in support of the bill.

I would note that outside scholars have questioned whether or not the Federal Government has the jurisdiction to impose this scheme on the States. I do not argue that today, but I think to some extent there is an open question as to that. There is also a more fundamental issue which may be partially addressed today, and that is what happens in the 45 days between a disaster that could eliminate the House of Representatives and the holding of these special elections.

In the 45 days following September 11, the House of Representatives cast 69 votes. Some of them were very important measures that helped us respond to the terrorism event. If there is no House of Representatives, there can be no Congress, and if there is no Congress to play its role in the constitutional scheme, the only thing that could happen in such a circumstance would be for the President to assume dictatorial powers and to end our system of constitutional government, an outcome that no one in this House or in this country wishes.

Under H.R. 2844, the House of Representatives would have no way to function for a month and a half; and without the House, there is no Congress. Several Members have introduced constitutional amendments that would address this problem. The gentleman from Washington (Mr. Baird) has offered an amendment which we are just about to vote on today. I have also introduced a constitutional amendment, H.J. Res. 96, which takes a different approach from the Baird proposal; and our colleagues, the gentleman from Connecticut (Mr. Larson) and the gentleman from California (Mr. Rohrabacher), have done similar things.

This whole issue is very complex, and it may be that none of the amendments are quite ready for our approval, but they certainly do command our attention. All deserve to be debated by Members of Congress, yet I believe that the House would be best served if the committee of jurisdiction, the Committee on the Judiciary, were to have hearings to sort through the complexities of this issue and then be able to present our findings to the full House for consideration.

However, during the 108th Congress, the Committee on the Judiciary has not had a hearing on this issue to compare the various proposals and to discuss the advantages and disadvantages

of each. In fact, I have requested a hearing. I did so during the markup of the Baird amendment in the Committee on the Judiciary, but none have been held.

Today, some may point out that there was a hearing on the constitutional amendment offered by the gentleman from Washington (Mr. Baird) in the 107th Congress. That is true, but the amendment on today's agenda is significantly different from the Baird amendment considered 2 years ago. This is a new amendment that was first introduced last December.

A distinguished commission that included former Speakers Foley and Gingrich, as well as Lloyd Cutler and former Senator Alan Simpson, studied this matter at some length and reached the conclusion that we need a constitutional amendment. I am not suggesting that we should simply accept their recommendations, but at the very least we should consider and evaluate their findings before we cast a vote that will define the stability or instability of the country in the event of a national crisis. Unfortunately, the Committee on the Judiciary has not had a single hearing on any of these amendments, so we will not have the benefit today of hearing from the scholars, former speakers and other distinguished leaders on this complex issue.

And now the leaders of the whole House are making the same error as the Committee on the Judiciary. They have scheduled a vote on an amendment that will decide the fate of our Congress during a catastrophe without first holding hearings to address the merits of the Baird approach and all of the others proposed by various leaders on the continuity of Congress.

Let me repeat. Today we are being asked to vote on an amendment to the United States Constitution, but we have not had even one hearing on the amendment in the Committee on the Judiciary in this Congress. It is not often that the Committee on the Judiciary marks up a constitutional amendment to the full House before holding a hearing.

Consider, for example, the constitutional amendment to protect the rights of crime victims. That particular amendment was introduced in the 108th, 107th, 106th, 105th and 104th Congress, and on each occasion prior to markup there were Judiciary Committee hearings.

Also, consider the committee's treatment of a constitutional amendment to prohibit flag burning. A proposal on this issue was introduced in the 108th, 106th, 105th and 104th Congress, and each time the Committee on the Judiciary undertook hearings.

Finally, in the 105th and 104th Congress, a constitutional amendment was introduced to limit the Federal Government's ability to raise taxes, and hearings were permitted on each occasion.

The majority has already seen fit to schedule a series of five judiciary hearings over the course of several months to discuss the issue of same-sex marriage and a potential constitutional amendment. It only makes sense that this House should not vote on an amendment to the U.S. Constitution before the Committee on the Judiciary holds at least one hearing.

This issue of the continuity of Congress should not be an exception. It is vitally important to our democracy and requires more deliberation.

Today, like I did in the Committee on the Judiciary 1 month ago, I will not vote to support the Baird amendment; but I will vote on a motion to recommit so that the Committee on the Judiciary will have a chance to appropriately hold hearings and review various approaches to this vital issue to our democracy. Some will reach a reasoned, but different, conclusion relative to the Baird amendment itself; but I think all will agree this body would be better served with extensive hearings on this complicated and enormously important subject.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 13 minutes to the gentleman from Washington (Mr. Baird), the author of this legislation.

Mr. Speaker, I would note that when the Founding Fathers spoke at that time, they were contrasting with a Senate that was appointed.

Mr. Speaker, I yield 3 minutes and 45 seconds to the gentlewoman from Texas (Ms. Jackson-Lee), a distinguished member of the Committee on the Judiciary.

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I yield 3 minutes to the gentleman from New York (Mr. Nadler), a distinguished member of the Committee on the Judiciary and the ranking member of the subcommittee.

Mr. Speaker, I yield 1 minute to the gentleman from Arkansas (Mr. Snyder).

Mr. Speaker, I yield 3 minutes to the gentleman from Rhode Island (Mr. Langevin).

(Mr. LANGEVIN asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 2 minutes to the gentleman from North Carolina (Mr. Watt), a distinguished member of the Committee on the Judiciary.

Mr. Speaker, I yield 3\3/4\ minutes to the gentleman from California (Mr. Rohrabacher).

Mr. Speaker, I yield 4 minutes to the gentleman from Washington (Mr. Baird), the author of the amendment.

Mr. Speaker, I yield 10 seconds to the gentleman from Washington (Mr. Baird) to make a correction.

Mr. Speaker, I reserve my time.

Certainly.

Mr. Speaker, I yield myself such time as I may consume.

I think it is important that we have hearings in the Committee on the Judiciary to examine this subject matter. Several speakers have suggested that to have a constitutional amendment to provide for the temporary replacement of Members of the House so that we could have a Congress that acts before elections can be held would be the end of democracy. I think that we need to come to grips with the fact that if they kill us all, we have some bad choices. Here they are.

We can have an appointed government, because there is a line of succession to the Presidency, in the Senate there is a provision in the Constitution for their appointment, and no House of Representatives, which means that the appointed President would assume dictatorial powers. Or we could have a constitutional amendment that allows for the temporary appointment of Members of the House until special elections can be held so that the House is made up of elected representatives. I think those are the choices that face us.

Now, the American Enterprise Institute did a good thing. They put together a commission that looked at this whole issue, and here is what they said in their report: ``While some protections,'' they say, ``exist for reconstituting the Presidency, Congress would have a far more difficult time. It might not function well or at all. Ensuring the continuity of Congress is now a more pressing need than at any previous time in our history. According to two of the 9/11 plotters, the fourth plane that crashed in Pennsylvania was headed for the Capitol, and it is entirely conceivable the Congress will again be a target.''

It is interesting that although we have proceeded on pretty much a party-line basis in the discussion of this matter, not completely but almost completely, and it was certainly a party-line vote in the House Committee on the Judiciary, the commission itself was very bipartisan. The honorary cochairmen were President Jimmy Carter and President Gerald Ford. The cochairmen were Lloyd Cutler and former Senator Alan Simpson.

Tom Foley, the former Speaker, and Newt Gingrich, the former Speaker, who did not agree on a lot, agreed on this. Further, Bob Michel, who was the minority leader for so many years and is so well regarded, served on this commission with Leon Panetta, and they agreed as well that what we need is a constitutional amendment.

The alternatives to a constitutional amendment do not solve the problems of mass vacancy. They have a chapter indicating why special elections are helpful but not sufficient, and here is what they say: ``The President would act without a check, extra constitutionally in some cases, until Congress reconstituted itself. In addition, there is a possibility that a Congress of greatly reduced size would act, and that the vast majority of Americans could view this Congress as illegitimate. Shorter election cycles would not eliminate any of these problems but only slightly shorten their duration.''

They point out that ``clarifying the quorum requirement is not a solution.'' And they say, ``While the commission sees the value of clarifying the interpretation of the quorum requirement, it does not believe that making the requirement more lenient will ensure the constitutional continuity of Congress. Quite the opposite. A lenient quorum requirement might result in a small number of Members acting as the whole Congress and calling into question the legitimacy of congressional actions. The commission does favor a clarification of the quorum requirement, but not as a substitute for the constitutional amendment.''

Mr. Speaker, I offer a motion to recommit with instructions.

I am.

Mr. Speaker, in the 45 days after September 11, this House first met to show the American people that their Congress was still intact, and then we went to work.

On September 13, we provided for the expedited payment for public safety officers who were killed or suffered catastrophic injury; we passed on September 13 the Victims of Terrorism Relief Act, the Emergency Supplemental Appropriations Act; on September 14 we authorized the United States Armed Forces to take action against those responsible for the attacks; we adopted the Air Transportation Safety and Stabilization Act; we made appropriations; we adopted bills to combat terrorism and adopted the Financial Anti-terrorism Act, the Bioterrorism Enforcement Act, and the list goes on and on.

Those were important activities. And if there were no Congress, those either could not have occurred or the executive would have had to assume the legislative authority that is by Constitution vested with the Congress. And as has been stated before, the Congress cannot exist unless the House of Representatives exists.

Now, we know that the temporary appointments can only be made if we are to change the Constitution. And although some think this is a bad idea, what we are asking is that we have a thorough study of this whole subject in the committee of jurisdiction in the House Committee on the Judiciary.

There are many issues that we need to discuss. There are, as the commission pointed out, several approaches that can be made, a broad approach that delegates to the Congress the ability to provide for replacements by statute, or a prescriptive approach similar to the one promoted by the gentleman from Washington (Mr. Baird).

What is incapacitated? How do we define that? If there is an appointment, is that person eligible to run for reelection? And if they are serving because of incapacity, will they be replaced when the incapacitated Member resumes their abilities? Who would do the appointments: the courts? the Member?

the governor? the legislature of each State? These are many questions that need to be answered, and all of them should be studied.

Mr. Speaker, I yield 2 minutes to the gentleman from Washington (Mr. Baird), the author of the amendment.

Mr. Speaker, I would ask only that we approach this on a bipartisan basis in the committee. We should hold hands and work on this as a team, not fighting each other on party-line votes.

Mr. Speaker, I demand a recorded vote.

Mr. Speaker, I rise today in support of the efforts of our colleague Representative Brian Baird to secure House consideration of the issue of amending the Constitution of the United States to ensure the continuity of Congress. I had hoped for hearings on this critical issue in the Judiciary Committee, followed by ``regular order'', and I had hoped for consideration of a number of Constitutional amendments sponsored by Members of the House, including H.J. Res. 89, which I introduced. One subcommittee hearing conducted 2 years ago does not really do this subject justice.

Many Members were looking for an opportunity to use the normal legislative process to develop and perfect their proposals regarding the continuity of the House, relying on the collective wisdom of the Members, and input from constituents. Such a discussion could have helped to educate both Members and the public on the importance of a Constitutional amendment. But because the truncated process foreclosed on that option, I did not submit my joint resolution to the Rules Committee.

Should the opportunity arise, I will vote to recommit this joint resolution to the Judiciary Committee, in the hope that there can be an open discussion, and broad debate on the matter. And I will vote for Rep. Baird's amendment, H.J. Res. 83, on final passage, in the hope that all Members who support the concept of a Constitutional amendment, will similarly express themselves on the worthiness of that objective, even though we may differ about which amendment would best serve this Nation. For I think this issue will arise again, and perhaps there will be an opportunity in the next Congress to more fully discuss and debate the issue. Sen. Cornyn's proposed Constitutional amendment is making its way through the Senate, so the issue is bound to arise again in some form.

While I believe the need for a Constitutional amendment is self- evident, I understand other Member's reservations about tinkering with the Constitution. Nonetheless, I have yet to hear a satisfactory answer to the question of what the Legislative Branch--not just the House-- could constitutionally do in the weeks or months following an attack, if deaths and incapacitation left either chamber bereft of a quorum, incapable of legislating, or so unrepresentative as to deligitimize any actions it might take.

H.R. 2844, the ``Continuity of Representation Act'', which passed in April, and which called for special elections within 45 days after a certain number of vacancies occurred in the House, did not address that question. I think we need to be realistic about the consequences of a non-functional Legislative Branch at what is likely to be the most critical juncture in our Nation's history.

And I would like to put to rest the notion that the continuity of Congress debate is in any way partisan. There is no partisan content whatsoever to this issue. Neither Republicans nor Democrats are advantaged or disadvantaged by any of the ideas we are discussing. The vote on H.R. 2844 should have put that notion to rest, when a majority of Democrats voted for the bill, joining all but a handful of Republicans.

Members will no doubt recall that in the days and weeks following September 11, 2001, the House passed numerous pieces of vital legislation, which allowed the government to function both in war, and in furtherance of domestic policy goals. We did not hand out a ``closed for business--trust the Executive'' sign. We exercised the checks and balances essential to a stable and mature democracy, and we got the job of legislating done in record time.

In the absence of a Constitutional amendment, there is the sad prospect that the National could be governed by either martial law, or by other extra-Constitutional actions by the Executive, of potentially dubious legal status. This would be happening at the most critical time in the Nation's history, since that would be the only means left to run the government without a functioning Legislative Branch. And that would trample upon one of the core principles of the Framers of our Constitution--our system of checks and balances.

The Framers feared a powerful executive. And in the early days of our Republic, the office of President was fairly weak. However it has grown stronger over time, as the institutions of government have evolved, and as the Nation's needs have changed. The essential roles of Congress includes restraining the Executive, and that role remains paramount in maintaining our democracy today.

We cannot predict how the Executive, claiming potentially dictatorial powers, will operate in the absence of a functioning Legislative Branch, or whether such actions will withstand legal challenge. But we do know how to prevent this situation from ever occurring. We need only to remove our heads from the sand, and take the proper steps to legally address the issue under the Constitution.

While it is essential that we protect the ``people's House'' by populating it with popularly elected representatives from the 50 states, it is also essential that we protect the ``people's interests'' by taking action to prevent the Legislative Branch from ever being shut down for weeks and months following a catastrophic event.

I want to take a moment to discuss my own proposal, which I believe is less cumbersome and more straightforward than some of the other concepts. It would provide for the appointment of temporary Members of the House by state legislatures or, in some instances, by state governors, to serve pending the filling of vacancies through special elections. I think this procedure would be less cumbersome than using lists of potential successors which Members would have to create each and every time they ran for office. In the next Congress, I might consider leaving the appointment power to governors alone.

My amendment would require that all temporary replacements be from the same political party as the Members they succeeded, and that their tenure cease as soon as a popularly elected successor presents credentials to the House. I look forward to future hearings to debate that aspect of the proposal, since issues have been raised as to how someone's party affiliation can be determined in some states.

The amendment would also bar the temporary replacements from seeking office in the next election for the House, in order to ensure that they focus on representing their new constituencies, and coping with the emergency, rather than creating fund-raising committees and filming television commercials.

The subject is also deserving of significant debate, since I know some have argued that temporary replacements should have the right to present themselves to the public for election in our democratic system. I believe, however, that during a crisis following a potential attack, it is more important to keep the government running, and there is nothing in my amendment which would bar these temporary replacements from running at a future time, after they have finished discharging the responsibilities of the office to which they were appointed.

My proposed Constitutional amendment also addresses the complex subject of incapacity, by giving Congress the power, by law, to address it. The issue is better suited to examination in a law-making, or rule- making process, rather than to being specified in detail in the Constitution. As ranking member of the House Administration's Committee, which has jurisdiction over the incapacity question, I hope to press for Committee debate on the subject.

Mr. Speaker, I ask unanimous consent to insert at this point in the Record, the text of H.J. Res. 89, and a section-by-section summary of the resolution, and yield back the balance of my time.

H.J. Res. 89

Resolved by the Senate and House of Representatives of the

United States of America in Congress assembled (two-thirds of

each House concurring therein), That the following article is

proposed as an amendment to the Constitution of the United

States, which shall be valid to all intents and purposes as

part of the Constitution when ratified by the legislatures of

three-fourths of the several States within seven years after

the date of its submission for ratification:

``Article --

``Section 1. A smaller number than the majority of the

House may resolve that a vacancy exists in the majority of

the number of seats of the House of Representatives provided

by law.

``Section 2. After the adoption of a resolution under

section 1, the legislature of any State in which a vacancy in

the membership of the House of Representatives exists shall

convene a special session to appoint an individual to fill

the vacancy.

``Section 3. If the legislature of a State does not convene

a special session under section 2 during the 5-calendar day

period which begins on the day after the date the House

adopts the resolution described in section 1, or if the

legislature convenes a special session during such period but

does not appoint an individual to fill a vacancy in a seat

during the 3-calendar day period which begins on the date the

legislature convenes the special session, the chief executive

of the State shall appoint an individual to fill the vacancy.

``Section 4. An individual appointed under this article

shall meet the qualifications for service as a Member of the

House of Representatives, and shall serve as a Member until

an election is held to fill the original vacancy. The State

shall provide for such an election at such time and in

accordance with such procedures as may be provided by law,

except that the individual appointed under this article may

not be a candidate in the next election for the House. An

individual appointed under this article shall be a member of

the same political party as the Member of the House who

previously held the seat.

``Section 5. The procedures and requirements described in

sections 2 through 4 shall apply only with respect to a

vacancy existing as of the date of the adoption of the

resolution described in section 1 or a vacancy first

occurring during the 20-calendar day period which begins on

such date. In the case of a vacancy first occurring during

such 20-calendar day period, section 3 shall apply as if the

reference to the date on which the House adopts the

resolution described in section 1 were a reference to the

date on which the vacancy first occurs.

``Section 6. For purposes of carrying out the provisions of

this article, Congress shall have the power by law to specify

circumstances constituting when a vacancy happens in the

Representation from any State in the House of

Representatives, and to address the incapacity of Members of

the House of Representatives.

``Section 7. Congress shall have power to enforce this

article through appropriate legislation.''.

Summary of House Joint Resolution 89, a Constitutional Amendment

Introduced by Representative John B. Larson To Allow Temporary

Appointments To Fill Vacancies in the House of Representatives

Section 1. A smaller number than a majority of the House

may resolve that a vacancy exists in the majority of the

number of seats in the House provided by law, triggering the

temporary appointment provisions.

Section 2. The legislature of any state in which House

vacancies exist shall then convene a special session to

appoint persons to temporarily fill the vacancies.

Section 3. If the state legislature does not convene within

five calendar days after passage of the House resolution, or

if the legislature does not complete selection of temporary

House Members within a period of three calendar days

beginning on the date of convening, the governor is required

to make the appointments.

Section 4. Members serving temporarily in the House by

appointment must meet the constitutional requirements for

service in the House, and will exercise the full powers of

membership until the vacancies are filled by election as

provided by law. A temporary Member may not be a candidate in

the succeeding election and must be of the same political

party as the Member who previously held the seat.

Section 5. The temporary appointment authority applies to

vacancies which exist at the time of adoption of the

resolution by the House, or to any additional vacancies which

occur within 20 days thereafter. If vacancies occur within

this 20-day period, the time limits relating to action by the

state legislatures and governors begin again with respect to

those House seats.

Section 6. For the purposes of this article, Congress shall

have the power by law to specify circumstances constituting

when a vacancy happens in the House, and to address the

incapacity of Members of the House.

Section 7. Congress shall have the power to enforce this

article through appropriate legislation.

The article would become part of the Constitution if

ratified by the legislatures of three-fourths of the states

within seven years of the date of its submission to them.

Mr. Speaker, on May 4, 2004, I introduced House Resolution 623. This was a one-line resolution which stated: ``. . . That the House of Representatives should address issues relating to the potential incapacity of its Members.'' I did this to make an important jurisdictional point.

The resolution, which was referred solely to the Committee on House Administration, served to highlight the committee's jurisdiction over how to deal with the status of incapacitated Members, and, by implication, more broadly with certain other matters relating to the continuity of Congress. The committee already has principal jurisdiction over the conduct of congressional and Presidential elections, the qualifications and credentials of House Members, and administrative control over the internal operations of the House, including Chamber security.

I would hope that in the 109th Congress, our committee, where I serve as the ranking minority member, will more forcefully exercise the authority it has to address a range of issues which threaten the ability of Congress to function in the event of a national catastrophe. We need to develop specific, and constitutional, proposals to address the potential absence of incapacitated Members. If the only effective way is through a constitutional amendment, as I suspect it is, then that argument should be clearly made.

Much attention in the 108th Congress has gone to other committees, such as Rules and Judiciary, which have specialized roles in considering certain types of continuity measures. If a proposal is introduced as a House rule, it will be referred to the Rules Committee; if it is a constitutional amendment, it will go to Judiciary. The Rules Committee held a useful hearing this year on incapacity, but its ability to deal with elements of the issue beyond changes to the rules of the House is limited.

This Congress has been a huge disappointment because of its failure to effectively address many issues involving the stability of our structure of Government, deficiencies brought to the forefront by the September 11 attacks, as well as a disturbing tendency to paper over controversies with legislation which fails to substantively address the problem.

For example, the House earlier this year rejected a constitutional amendment offered by Representative Baird of Washington which would have reconstituted the House quickly through temporary appointments, pending special elections, if a large number of Members

were killed. I had introduced an alternate version of the proposal, H.J. Res. 89. Members opposed to the concept--which is admittedly extremely controversial--refused to allow real hearings and debate, preferring instead to misrepresent the various proposals which were introduced and to mock the sponsors. Even though prospects for passage of such an amendment at the time were extremely slim, a substantial debate would have served to educate the Congress and the American people on the importance of these issues, and perhaps provided impetus in a search for alternatives.

Instead, the House passed, but the Senate subsequently killed, H.R. 2844, the ``Continuity of Representation Act'', which created an unrealistically fast, unfair, undemocratic and unworkable scheme to fill vacant House seats through a mandatory national 45-day special election period. This bill was referred principally to the House Administration Committee, where I was able to point out its many flaws.

Neither House passed simple legislation which would have corrected an oversight in the legislation creating the Department of Homeland Security in 2002, which failed to place the supposedly critical new Cabinet officer somewhere--anywhere--in the statutory line of succession to the Presidency.

Though hearings were held, neither House addressed significant issues of Presidential succession, such as the role of the Speaker and President pro tempore and lame duck Cabinet members in the succession lineup, and the ability of some officials to ``bump'' others serving as acting President under the current Federal statute.

The House is apparently planning to paper over its failure to effectively address congressional continuity by passing a blatantly unconstitutional new House rule when the 109th Congress convenes. It would pretend that a rump group of Members, acting with a ``provisional quorum,'' could exercise the full powers of the House even though a majority of the membership might still be alive but unable to reach the place the House was meeting in a timely manner.

The proposal pretends to address the problem of incapacitated Members by effectively ignoring it, and by allowing the Speaker to deprive them and other absent Members of their constitutional authority by adopting an unprecedented and radical procedure to declare a quorum present when it clearly isn't. The proposed rule would ignore the explicit constitutional prohibition against less than a majority of the Members of the House taking any action except to adjourn, or to compel the attendance of absent Members. It would also demolish the century-old precedent, based on the Constitution, that a quorum of the House consists of a majority of the membership chosen, sworn and living.

It is likely that this unconstitutional proposal will be shoehorned into House Resolution 5, the traditional opening-day resolution through which the House adopts its rules, to be considered on January 4, 2005. Parliamentary practices in effect at that time would allow only one hour of debate on the resolution, no matter how numerous or how controversial the rules changes contained within it might be. At a minimum, the House should debate the provisional quorum issue separately, following hearings by the Rules Committee through which Members could better inform themselves, I would hope, of the truly dangerous ramifications of this idea.

Mr. Speaker, I plan to urge further action on congressional continuity issues in the new year, to work with my colleagues on the Committee on House Administration to assert our own jurisdiction more effectively and to push the other relevant committees to do the same. We need both more effective action, and better internal cooperation, to accomplish these goals.