Mr. Speaker, I would like to thank the Chairman of the Rules Committee Mr. Dreier for convening this special order tonight to discuss the very important issue of how the House would survive an enemy attack that left a majority of our…
Mr. Speaker, I would like to thank the Chairman of the Rules Committee Mr. Dreier for convening this special order tonight to discuss the very important issue of how the House would survive an enemy attack that left a majority of our Members dead or unable to perform their duties. I would also like to associate myself with the comments of my Rules Committee colleague, Mr. McGovern, who is the ranking member of the Rules Subcommittee on Technology and the House and has taken a keen interest in this issue.
Mr. Speaker, it has been more than 3 years since the September 11 attacks and the startling realization that the Capitol Building and Members of Congress were in imminent physical danger that morning. If not for the bravery of the passengers on Flight 93, the United States Capitol, the seat of our legislative branch, could have been destroyed by an enemy attack, killing or injuring an unknown number of Senators, Representatives, and staff. It is now clear we were wholly unprepared to deal with the aftermath of a successful attack. We had given little thought to how Congress would continue performing our duties if our chambers and offices were destroyed, and many of our Members were dead, injured, or missing.
There is no way the wise people who created our Federal Government could have ever foreseen the possibility that enemies of the
United States could highjack large commercial jets and try to fly them into the seat of the Federal Government. In the summer of 1787, the Founding Fathers spent a great deal of time identifying, discussing and correcting the weaknesses in the constitutional system they were creating, but we cannot fault them for remaining silent on threats to the system they were unable to imagine.
It instead falls on our shoulders to take the necessary steps to ensure that Congress will continue to function in the face of threats that are new to our age. All Members of the 108th Congress, especially those in leadership positions, share the same responsibility that Members of the 1st through 107th Congresses bore during their times of service: to preserve the institution of Congress and the role of the legislative branch in our constitutional democracy. As I have stated many times in the various hearings and debates we have conducted over the past several years, ``continuity of Congress'' is above all an institutional issue. There is no issue on which partisan posturing or maneuvering is less appropriate. Our enemies seek to destroy and disrupt our democratic system; they view all of us, both Democrats and Republicans, as their common enemies.
Mr. Speaker, on the evening of September 11, we gathered on the East steps of the Capitol as Americans and as Members of Congress who had sworn to protect and defend our country and our Constitution. At that moment, our partisan divisions were meaningless. We stood hand in hand and sang ``God Bless America'' to show the American people that their Congress was open for business and prepared to respond to the terrorist attacks. As the former Republican majority leader, my North Texas colleague, Dick Armey commented at that time: ``I cherish the fact that when our country needed us to come together, we stood on the steps of this Capitol and hand to hand we sang ``God Bless America'.''
Over the 3 years that have now passed since that evening, there have been moments where Members of Congress and outside experts have risen to the challenge of honestly confronting the tough questions surrounding how our three branches of government would endure a direct enemy attack. In May 2002, the Speaker and minority leader created a bipartisan ``Continuity of Congress Working Group,'' which I co-chaired and came to be known as the ``Cox-Frost Working Group.'' This group met eight times in the following months, consulted with outside experts, and carefully examined the current rules and statutes governing congressional and executive succession. Late in the 107th Congress, the group unanimously recommended three House Rules changes it felt would improve the Speaker's ability to reconvene the House after an attack. The House adopted these suggestions into its rules package for the 108th Congress.
Elsewhere in Washington, Congressional scholars from two usually ideologically opposed think tanks, the Brookings Institution and the American Enterprise Institute, came together to create the Continuity of Government Commission to examine these problems. Commission members included former House Speakers Newt Gingrich and Tom Foley, respected former Members of Congress from both parties, as well as former senior officials from both Democratic and Republican administrations. After two all-day hearings and extensive consultations with former Members of Congress and scholars, the Commission released a report in May 2003 concluding that ``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 Commission frankly admitted that it looked at all options short of amending the Constitution, but reluctantly concluded that amending the Constitution to clarify what would happen in the case of mass vacancies or incapacitation in Congress was ``the only solution that adequately addresses the problem.'' The Commission wrote: ``Our study of alternative approaches persuades us that no other option provides more than a partial and inadequate fix to the problem.''
It has been a great disappointment to watch the spirit of honest inquiry and comity that characterized the work of the Cox-Frost group and the Continuity Commission vanish in the 108th Congress. I have been dismayed to see the House debates over continuity issues in this Congress revert back to the normal partisan lines. On several occasions this year, Republican leaders have jammed through bills and resolutions on continuity issues with little or no opportunity to offer amendments and inadequate hearings. While Rules Committee Republicans deserve credit for holding a civil and informative hearing on this proposed rules change last April, the only outside witness they called to testify was a legal scholar who would confirm their pre-determined position that the House rulemaking power allows the Speaker to adjust down the quorum number. With all due respect to the Republicans on my committee, I do not believe this single hearing confronted the constitutional and institutional complexities raised by this rules change in the serious, thoughtful way they deserved.
Although the resolution draft the committee is currently circulating is a great improvement over earlier drafts, I nevertheless oppose it. I do so because I do not feel it takes all of the steps necessary to make sure that in the wake of a catastrophic enemy attack, the surviving, able-bodied Members of the House of Representatives would be able to regroup, reorganize, and demonstrate to the American people that they have risen above their partisan divisions to preserve the House of Representatives and the indispensable role it plays in our constitutional system. It is essential that the rules we establish now to govern a future catastrophic situation give the remaining Members every possible tool to prove to the American people that all of their actions, both the reorganization and the legislation they pass afterwards, are motivated only by their duty to protect our country and our democratic form of government. I believe this resolution's failure to establish a process in which a diminished House can only organize and do business with the concurrence of party leaders will leave it vulnerable to charges of partisanship and illegitimacy.
The rules change proposed in this resolution addresses the issue of mass Member incapacitation. What would happen if terrorists managed to successfully injure, but not kill, a significant number of Members of Congress? Since the early 20th century, House precedents have defined the membership of the House for the purpose of determining a quorum as those Members ``chosen, sworn, and living,'' which has resulted in small periodic adjustments to the quorum number as individual Members die or resign. In the case of mass incapacitation, where Members would temporarily be unable to perform their duties but were still alive, the House would not be able to conduct business because it would lack a majority of its extant Members and therefore lack a quorum.
The solution to this problem proposed in this rules change is to lower the quorum number by the number of Members who are incapacitated and temporarily unable to perform their legislative duties. In other words, in the wake of a calamitous event, the House would conduct its lawmaking and other business not with a quorum of 218 (as is now required if all apportioned 435 House seats are occupied), but with a much smaller number of Members. For example, if terrorists launched a successful anthrax attack on a meeting of the Republican Conference and temporarily debilitated the 228 current Republican Members of the House, the remaining Members could meet, declare those Republican Members incapacitated, adjust down the quorum number to 104 (the majority of living House Members still able to perform their duties), and then conduct any and all business, including declaring war and electing a Speaker. Operating under this so-called ``provisional quorum,'' the House could pass bills with as few as 53 votes (a majority of 104 Members).
A problem the majority has ignored through this process is whether the Constitution allows the House to adjust its quorum number downwards to a figure significantly below 218 seats, a majority of the whole number of currently apportioned seats. Instead of honestly exploring this important question, the Rules Committee glossed over it. It called in one expert, the well-respected Duke Law School professor and former Solicitor General Walter Dellinger, who testified that the House rulemaking power is sufficiently robust and that the Constitution's quorum language is sufficiently vague to allow the House to adjust down the quorum number to account for Members incapacitated due to a national calamity. Professor Dellinger's argument is that a diminished House is better than no House at all in an emergency situation and that a literal reading of the Article I quorum requirement could do irreparable damage to our system of government, which the Founders could not have intended.
While Professor Dellinger is a well-regarded jurist and I accept his pragmatic reading of Article I for the purpose of this proposed rule change, I must note that other experts are less confident that lowering the quorum is constitutionally sound. These scholars argue that a plain reading of article I, sec. 5, cl. 3 of the Constitution (``a Majority of each [House] shall constitute a quorum to do Business'') leads to the obvious conclusion that the House can only do business when a majority of its whole, apportioned number is present. The Founders viewed the House as the most purely republican, representative department of the Federal Government, whose Members were most directly accountable to what James Madison called the ``great body of the people'' of the United States. They argue that allowing a small fraction of Members to pass laws and do business violates the fundamental, constitutional function of the ``People's House.''
Professor Cass Sunstein of the University of Chicago Law School, for example, in testimony he submitted to Senator Cornyn and
the Senate Judiciary Committee, takes the position that the House rulemaking power may extend to lowering the quorum, but concedes, ``To say the least, it is awkward and uncomfortable to interpret a document in a way that violates its evidently plain meaning. In addition, the quorum provision has an important structural purpose, which is to ensure that laws are not made by a minority of the legislature, in a way that compromises the constitutional commitment to deliberative democracy. (The ability to raise quorum objections to a voice vote is an important safeguard here).''
While I personally believe the House's constitutional rulemaking power allows the House to temporarily lower its quorum number in extraordinary circumstances, we have no assurance our courts and the ``great body of the people'' of the United States will accept as legitimate the laws we pass with a significantly reduced quorum. In addition, Rules Committee Republicans' assurances that these proposed rules changes are non-justiciable are less than meets the eye. They are correct that under our Federal case or controversy jurisprudence, it would be almost impossible to challenge the rules themselves, especially before they are invoked. But they gloss over the fact that citizens injured by laws passed by a House with a diminished quorum would likely have justiciable claims.
Consider the following example: During a period of mass incapacitation, a Congress with a diminished House imposes a punitive commercial tariff on a foreign country Congress feels has not been sufficiently helpful in the War on Terrorism. A businessman in New York who imports goods from that country is economically damaged by the tariff. He goes to a Federal court with a claim that the tariff is invalid because the House approved the tariff without a Constitutional quorum and requests an injunction blocking enforcement of the law. This businessman would almost certainly have a justiciable claim. His facts would be identical to those of the case that resulted in the famous U.S. v. Ballin case, in which the Supreme Court held that the House's rulemaking power allows the Speaker broad latitude in determining the best way to count Members to determine that a majority of the House is present and there is a quorum to conduct business. The Ballin case did not reach the question of what the term ``majority'' means or whether the Speaker has the power to change it to a number other than the majority of the whole number of apportioned House seats. That would be the question the injured New York businessman asked our courts to decide and an adverse decision could cast into doubt all of the actions of a House operating with a provisional quorum.
I run through this scenario not just to illustrate that we should not presume that this rule change will survive a legal test just because the Majority has found one respected legal expert who believes it is constitutional. The actions of a House meeting with a diminished quorum will be subject not just to judicial scrutiny, but to the scrutiny of the American people. Will the American people accept as legitimate the actions of a House made up of a fraction of its 435 seats? Will the American people accept laws passed by House Members who represent only a fraction of Madison's ``great body of the people'' of the United States? I feel that a diminished House, especially a diminished House whose basic partisan makeup is significantly altered, could be subject to suspicions that it is acting not in the best interests of the country, but in the interests of the party that was fortunate to lose fewer of its Members in an enemy attack.
The rules change proposed in various drafts of this resolution does not reassure me that the Republican leadership is sufficiently sensitive to this concern. Under its proposed rules change, in the aftermath of a calamity, the House would first use the power it has under clause 5 of rule XX to assemble a quorum through compelling the attendance of absent Members. Under this provision, a majority of 15 Members may vote to send the Sergeant-at-Arms out to arrest those Members able to attend, and to otherwise account for absent Members. When this process is exhausted, and a quorum has not yet appeared, the House would go through a special 72-hour quorum call. During this period, the Speaker and other House officers would be working to determine the nature and extent of the crisis. At the end of this 3-day quorum call, the Speaker could then present to the House an unappealable ``catastrophic quorum failure report'' concluding that a calamity has taken place, a large number of Members are incapacitated, and that, as a consequence, the House is unable to assemble a majority of its whole number to do business. After another 24-hour quorum call, the quorum number would be automatically adjusted downwards to a new ``provisional'' quorum number. This provisional number would be determined by excluding the Members who have died and those Members whom the report deems incapacitated, unaccounted for, or otherwise incapable of attending. With this new, smaller provisional quorum, the House would then be able to conduct any business it can currently conduct with a quorum of the whole number of the House.
I acknowledge and am grateful that Rules Committee Republicans improved on earlier drafts of this resolution by providing more detail on what information the ``catastrophic failure report'' should contain and by adding a requirement that the Speaker consult with the two party leaders when he or she receives and then announces the content of the report. But I must point out that the current language does not adequately address my fundamental concern that the actions of a House operating under a provisional quorum will be vulnerable to charges of illegitimacy and political manipulation.
Under the scheme set up in the draft resolution, the Speaker would still have the sole power (1) to determine that a catastrophic event contemplated by the rule has occurred and (2) to determine which Members are incapacitated and therefore unable to perform their duties. While I respect the fact that the Speaker is the constitutionally created presiding officer of the House, I would also note the obvious fact that the Speaker is the leader of the majority party in the House. I am concerned that the Speaker's unilateral decisions to designate a disaster situation and/or to declare certain Members incapacitated will be vulnerable to charges of partisanship and manipulation. Such charges, whether they are made against a Republican or a Democratic Speaker, would harm the legitimacy and the credibility of any subsequent actions the House took with a diminished quorum.
During our discussions over the wording of this rules change, I proposed language to ensure that the decision to declare a calamity or declare Members incapacitated would occur in a manner that would be most likely to garner broad support and legitimacy in the House and in a country struggling in the aftermath of an enemy attack. To have legitimacy, we must be able to show Members from both parties and the American public that our decision to operate under a reduced quorum was based solely on our solemn duty to preserve the institution of the House. I proposed simple language I felt would turn a unilateral decision-making process into a consensus-building, institutional process designed to garner the broadest possible support. My version would require the Speaker not to just consult with the majority and minority leaders, but to obtain their concurrence that a calamity has occurred, that certain Members are dead or incapacitated, and that it is necessary to trigger the process for establishing the lower provisional quorum.
The testimony of the House Attending Physician, Dr. John Eisold, during the April 2004 hearing, highlights my concerns about a process that gives the Speaker unilateral decision-making power. Dr. Eisold's testimony made it clear that determining a Member's ability to serve in the House after a calamity could become a very controversial matter. While medical professionals like Dr. Eisold could provide the Speaker with an ``objective description of the state of a member's health as determined by the medical establishment,'' the determination of incapacitation is a subjective judgment, ``made by non-medical people but based on meaningful and accurate medical input.''
During Dr. Eisold's testimony, both Mr. Hastings of Washington and Mr. McGovern discussed the dangers inherent in this determination-of- incapacity process.
They posed a very important question: How do we prevent the process from becoming one where Members are declared incapacitated based on their party rather than their medical condition? For example, what credibility would the Speaker's decision have to declare a Member of his or her own party fit to serve in the House, but to declare a Member of the other party with similar symptoms incapacitated? I believe the only way to conduct this process in a manner that promotes legitimacy is to require that not just the Speaker, but the leaders of both parties in the House, agree that a certain Member is or is not able to report for work. An incapacitation list approved by the Speaker, as well as concurred in by party leaders, would reassure Members of both parties and the public that the process has been based only on the best available medical information and the best judgment of their Congressional leaders.
Regrettably, but not surprisingly, Republican Members of this Committee have resisted my suggestion. I have argued that changing the procedure from one where the Speaker merely consults with party leaders to one where he or she must obtain their concurrence would transform a potentially politically divisive moment into a moment where Congressional leaders from both parties would be able to assure the American people that the legislative branch has survived an enemy attack and is open for business. It would foster a process that would result in a show of solidarity and strength like the one Members of Congress showed on the Capitol steps after the September 11 attacks. I believe that any Speaker,
Democrat or Republican, who found her or himself in this situation, would welcome the political and moral support of senior House Members from both parties.
An objection I have heard to my concurrence language is that it improperly limits the Speaker's constitutional power to preside over the House. The Constitution and our House Rules give the Speaker extensive power to organize the House, to conduct the House's day-to- day business, and to maintain order in the House. Under my proposal, with the concurrence of the majority and minority leaders, the Speaker would retain the ministerial power to issue the calamity report, trigger the provisional quorum process, preside over a diminished House, and control the House's agenda. I must restate the obvious point, however, that this resolution is not a run-of-the-mill rules change. This resolution sets the House on a course into uncharted constitutional territory, where questions concerning the legitimacy of its actions could be very serious. The Speaker's powers to preside over the House would mean very little if the House were discredited by actions the American public broadly viewed as partisan and opportunistic.
Furthermore, I would point out that while the Speaker's powers to run the House are broad, they are finite. In a variety of ways, our standing House Rules protect Members from what Jefferson called the ``caprice of the Speaker.'' The House can vote to remove the Speaker and can reverse the Speaker's rulings on points of order and calls to order. The rules change contemplated in this draft resolution, however, makes an extraordinary departure from the principle that the House has the right to rein in a Speaker who is abusing her or his power. The resolution makes unappealable the Speaker's decision to announce that a calamity has occurred and that certain Members are incapacitated. While I agree that the exigencies of a catastrophic situation might require that the Speaker be able to act quickly and decisively after the House has decided that a calamity has occurred, the Speaker risks losing the confidence of Members and the American public if he or she acts without the concurrence of party leaders, in a manner unhappy Members or outside critics could characterize as irresponsible or capricious.
I must also point out that any taint of illegitimacy or political opportunism generated by the House in the wake of a calamity could easily spread to the Executive Branch. Under our current Presidential succession statute, the Speaker of the House is the third in line to succeed as President and a newly elected Speaker would bump any Cabinet Secretary lower in the line of succession who has taken the office of President in accordance with the statute. In other words, a House operating under a provisional quorum in the wake of a catastrophic event that has not only killed or injured many Members of Congress, but has also killed the President, the Vice President, and the Speaker, could have the power to choose the new President through the election of a new Speaker.
Under clause 8(3) of rule 1, which we adopted at the beginning of the 108th Congress, if the Speaker perishes or is seriously injured in an attack, the Member at the top of the successor list the Speaker has delivered to the Clerk becomes Speaker pro tempore (with all of the authority of the Office of Speaker) until the House elects a new Speaker. This raises the question of whether the temporary Speaker pro tempore would be in the line of succession and therefore become President. This possibility leads to another vexing question: would the temporary Speaker pro tempore be bumped from the Presidency by the new Speaker elected by a House operating under a provisional quorum? Another troubling scenario would be one in which the Speaker and the Members he or she has named as successor Speakers pro tempore all perish or remain seriously injured in an enemy attack. As our current Parliamentarian John Sullivan testified at the April hearing, in this case, the Clerk would take the Chair, the House would elect a new Speaker, and then reorganize in the same way the House reorganizes at the beginning of each Congress. A Speaker elected in this fashion would also be in the line of Presidential succession under current law.
These startling possibilities make me more insistent than ever that the process of declaring a calamity and conducting business in a diminished House be one that garners the broadest possible confidence and support. The aftermath of an enemy attack is the worst possible time for our country to endure a debate over whether the sitting President properly holds the office.
Finally, I find it curious that the Republicans have resisted accepting our language to include leaders from both parties in the decision to trigger the reduced quorum procedure. Their own expert, Professor Dellinger, proposed it in the testimony he submitted to the Committee. Professor Dellinger's testimony expresses the same concern we have outlined in the previous paragraphs. He said: ``For the rule's invocation to have true legitimacy, there must also be some procedural guarantee that the rule is not being improperly invoked for factional reasons.'' Out of his concerns over legitimacy, Professor Dellinger went on to ``strongly recommend that the power to invoke the rule be placed not solely in the discretion of the Speaker, but rather require as well the concurrence of one or more members of the minority party's leadership, from a list chosen ahead of time.'' In other words, Committee Republicans have explicitly rejected the single most important policy recommendation their star witness, Professor Dellinger, made in his testimony.
I think when he used the term ``factional reasons,'' Professor Dellinger was choosing his words very carefully. He was no doubt referring to James Madison's famous discussion of the dangers of faction to the republican form of government in Federalist 10. One of the most persistent problems in the governments of his time, Madison wrote, was: ``that the public good is disregarded in the conflicts of rival parties; and that measures are too often decided, not according to the rules of justice, and the rights of the minor party; but by the superior force of an interested and over-bearing majority.''
There is no subject on which it is more important for Congressional leaders to set aside their partisan differences and their instinct to turn everything into a ``factional'' dispute than the Continuity of Congress. Unfortunately, I feel that House Republicans have, at least temporarily, succumbed to their partisan instincts and have produced bills and resolutions that reflect the ``superior force of an interested and over-bearing majority'' rather than a good faith effort to protect and preserve the House of Representatives and its indispensable role in our constitutional system. In its current form, the draft rules change lacks the tools a post-calamity House would need to preserve our beloved institution and to demonstrate to the American public it has risen above its partisan differences for the sake of our Nation. I sincerely hope that a final version of this rules change, whether it is adopted in the final days of the 108th Congress or in a future Congress, reflects the spirit of unity, patriotism, and duty to this House that this issue deserves.