Regarding the potential incapacity of Members of the House of Representatives.

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.