[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
CONGRESSIONAL CONTINUITY: ENSURING THE
FIRST BRANCH IS PREPARED IN TIMES OF CRISIS
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HEARING
BEFORE THE
SELECT COMMITTEE ON THE MODERNIZATION OF CONGRESS
OF THE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
APRIL 6, 2022
__________
Serial No. 117-17
__________
Printed for the use of the Select Committee on the Modernization of
Congress
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via http://govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
47-600 WASHINGTON : 2022
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SELECT COMMITTEE ON THE MODERNIZATION OF CONGRESS
DEREK KILMER, Washington, Chair
ZOE LOFGREN, California WILLIAM TIMMONS, South Carolina,
EMANUEL CLEAVER, Missouri Vice Chair
ED PERLMUTTER, Colorado BOB LATTA, Ohio
DEAN PHILLIPS, Minnesota RODNEY DAVIS, Illinois
NIKEMA WILLIAMS, Georgia DAVE JOYCE, Ohio
GUY RESCHENTHALER, Pennsylvania
BETH VAN DUYNE, Texas
COMMITTEE STAFF
Yuri Beckelman, Staff Director
Derek Harley, Republican Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Chairman Derek Kilmer
Oral Statement............................................... 1
Vice Chairman William Timmons
Oral Statement............................................... 3
WITNESSES
George Rogers, Former General Counsel, Committee on Rules
Oral Statement............................................... 4
Written Statement............................................ 7
Doug Lewis, Former Election Center Executive Director
Oral Statement............................................... 26
Written Statement............................................ 28
The Honorable Arthur B. Culvahouse, Co-Chair, Continuity of
Government Commission, American Enterprise Institute
Oral Statement............................................... 37
Written Statement............................................ 39
The Honorable Donna Shalala, Co-Chair, Continuity of Government
Commission, American Enterprise Institute
Oral Statement............................................... 44
Written Statement............................................ 46
The Honorable Brian Baird, Continuity of Government Commission,
American Enterprise Institute
Written Statement............................................ 49
Discussion....................................................... 78
APPENDIX I: ANSWERS TO POST-HEARING QUESTIONS
The Honorable Arthur B. Culvahouse, Co-Chair, Continuity of
Government Commission, American Enterprise Institute........... 112
George Rogers, Former General Counsel, Committee on Rules........ 114
The Honorable Brian Baird, Continuity of Government Commission,
American Enterprise Institute.................................. 120
APPENDIX II: ADDITIONAL MATERIAL FOR THE RECORD
Additional Testimony by The Honorable Brian Baird, Continuity of
Government Commission, American Enterprise Institute........... 126
Additional Statement by George Rogers, Former General Counsel,
Committee on Rules............................................. 142
CONGRESSIONAL CONTINUITY: ENSURING THE FIRST BRANCH IS PREPARED IN
TIMES OF CRISIS
WEDNESDAY, APRIL 6, 2022
House of Representatives,
Select Committee on the
Modernization of Congress,
Washington, DC.
The committee met, pursuant to call, at 9:00 a.m., in Room
1334, Longworth House Office Building, Hon. Derek Kilmer
[chairman of the committee] presiding.
Present: Representatives Kilmer, Cleaver, Perlmutter,
Phillips, Williams, Timmons, Davis, Latta, and Van Duyne.
Also Present: Representatives Scanlon and Loudermilk.
OPENING STATEMENT OF HON. DEREK KILMER, CHAIRMAN
The Chairman. Okay. The committee will come to order.
Without objection, the chair is authorized to declare a
recess of the committee at any time.
And, without objection, I would also like to welcome our
colleagues from the Committee on Rules and the Committee on
House Administration to participate in this hearing.
The topics we are focusing on today fall within their
jurisdiction, so we wanted to make sure to include them in this
discussion. Their participation in the hearing will be limited
to the Q&A portion of the hearing.
I now recognize myself for 5 minutes for an opening
statement.
One of the least surprising things we will hear today is
that no one wants to imagine a future that doesn't involve
them. It is why less than half of American adults have a will.
And it makes total sense. There is a natural tendency to
procrastinate when it comes to planning for anything that is
remotely unpleasant, much less catastrophic. It is pretty easy
for most people to ignore the consequences of doing nothing
when the chances of disaster seem unlikely.
But what about institutions, how do they assess risk and
plan for worst-case scenarios? As it turns out, there are a lot
of people--the institutions are a lot like people, meaning,
they are all over the place. That is true whether we are
talking about governments or businesses or schools or other
organizations.
State government continuity plans range from detailed to
sparse, according to the National Conference of State
Legislatures, and foreign legislators are just as inconsistent.
Big companies are more likely to have business continuity plans
in place compared to medium and small companies, but they vary
a lot in terms of their depth and scope. And as we have seen
over the past couple of years, continuity of education very
much depends on the school and the district.
The 9/11 attacks did spur a broad movement toward
continuity planning, and our recent experience with COVID has
reportedly had a similar effect. That is a good thing. The less
time institutions devote to reacting, the more time they can
spend doing what they are supposed to do.
For Congress, that means working on behalf of the American
people. The attacks on 9/11 made clear how vulnerable this
institution is. The possibility of a Congress without a Capitol
and without its Members is obviously something none of us want
to contemplate. But as representatives of the people, we need
to. Our essential responsibility is to make sure that the
people's voice remains intact no matter the circumstances.
Figuring out how to do that is no easy task, as the experts
joining us today well know. Some were involved in the post-9/11
debates around continuity of Congress and will share with us
their firsthand perspectives on why this incredibly important
issue is so tricky to address.
Our most recent experience with COVID is a reminder that
there is still much work to be done. Congress has learned a lot
about continuity of operations in the past 2 years, just as it
did on the heels of 9/11. And while we all want nothing more
than to move on and put the pandemic behind us, Congress should
take advantage of this unique moment. Because if we don't,
Members will be sitting around 20 years from now, trying to
make sense of what happened and why, just like a lot of us are
doing today with regard to 9/11. That is a disservice to the
American people.
The bottom line is that if Congress can't function, our
constituents lose their voice in government. That is a core
principle of representational democracy that should be
preserved. A Congress that can't function also opens the door
to unilateral executive branch control which defies
constitutional intent.
So today is about restarting that conversation. The experts
joining us will provide background and perspective on the
measures Congress adopted after 9/11 to ensure continuity of
representation. They will also discuss the current
effectiveness of those measures and whether they think
additional steps need to be taken or adjustments made. I am
looking forward to a good discussion.
The committee will once again make use of our committee
rules that give us the flexibility to engage in extended
discussion in the civil exchange of ideas and opinions. In
accordance with clause 2(j) of House rule XI, we will allow up
to 30 minutes of extended questioning per witness. And, without
objection, time will not be strictly segregated between the
witnesses which will allow for extended back-and-forth
exchanges between members and the witnesses.
Vice Chair Timmons and I will manage the time to ensure
that every member has equal opportunity to participate. Any
member who wishes to speak should just signal their request to
me or Vice Chair Timmons.
Additionally, members who wish to claim their individual 5
minutes to question each witness pursuant to clause 2(j)(2) of
rule XI will be permitted to do so following the period of
extended questioning.
Okay. I would like to now invite Vice Chair Timmons to
share some opening remarks as well.
OPENING STATEMENT OF HON. WILLIAM TIMMONS, VICE CHAIRMAN
Mr. Timmons. Thank you, Mr. Chairman.
First, I just want to say thank you all for coming today.
This is a very, very complicated issue, and we are going to
spend some time digging in on it.
I am going to begin by just talking about this committee.
We try to make Congress better. We try to modernize Congress.
That is our mission, more effective, efficient, and transparent
for the American people.
We start with what is the problem, and then we try to
figure out a way to solve the problem. Let's take staffing, for
example. We have made a number of recommendations there. I
think the biggest ones are decoupling Member pay to allow us to
pay our senior staffers more and increasing the MRA to give
Members more resources to compensate staff better, keep them
here longer. A number of other recommendations.
We have made a lot of progress, we can keep going, but that
is the model. So let's start with, what is the problem? The
problem is, after 9/11, we dug deep and tried to figure out
what we would do in a worst-case scenario.
The way I see it is there is two types of problems. One,
there is policy issues. Does anybody think it is a good idea
that if enough members in the majority party were to meet an
untimely demise, that a motion to vacate the chair could switch
the balance of power, have a new Speaker for 100 to 150 days?
That is just a policy question. I don't think that is--that is
not the way it should be, but that is the way it currently is.
So we got to start with what is the problem. So that is the
policy.
Then we have procedural--potential procedural legal
challenges to continuity of Congress. So worst-case scenario,
designated survivor kind of situation. We have all seen the
show. You have the designated survivor off, and he is getting
sworn in as Acting President. You got 30 Members of Congress
who are sitting here, saying, well, we are going to elect a
Speaker. That new Speaker then is going to say, I am the
President, and the designated survivor is going to say, Well,
are you? Like, you had 30 Members of Congress elect you
Speaker. That is not a quorum. So then they are going to say,
well, let's go to the Supreme Court. Ooh, there is no Supreme
Court. What do we do?
So that is just a problem. And I am really looking forward
to figure out whether we agree that is a problem, whether that
is actually what would happen, or if we need to make
recommendations to change it to address that.
So I am looking forward to this hearing. I really
appreciate you all being here.
And, with that, Mr. Chairman, I yield back.
The Chairman. Thank you, Vice Chair Timmons.
I am honored to welcome four experts who are here to share
with us their experiences, perspectives, and ideas for how to
ensure congressional continuity in the event of a catastrophe
or emergency. We also have a couple of others who aren't going
to have opening remarks but are going to be available to also
share their wisdom with us.
Witnesses are reminded that your written statements will be
made part of the record.
Our first witness is George Rogers. Mr. Rogers spent 14
years working for the U.S. House and U.S. Senate. He served as
general counsel to the House Committee on Rules and as counsel
at the House Oversight and Government Reform Committee. He
began his public service career working for former Senate
Foreign Relations Committee Chairman Richard Lugar.
Mr. Rogers, thank you for being with us. You are now
recognized for 5 minutes.
STATEMENTS OF GEORGE ROGERS, FORMER GENERAL COUNSEL FOR THE
HOUSE RULES COMMITTEE; AND DOUG LEWIS, FORMER ELECTION CENTER
EXECUTIVE DIRECTOR
STATEMENT OF GEORGE ROGERS
Mr. Rogers. Thank you, Mr. Chairman.
Chairman Kilmer, Vice Chair Timmons, and members of the
committee, and my distinguished fellow panel members, it is an
honor to appear before you here today.
I was privileged, as you said, to serve as the general
counsel for the Rules Committee right after the 9/11 terrorism.
It was a time of self-examination when the words ``homeland
security'' took on a whole new meaning.
At the time, I was assigned three major projects to assist
Members. First, to create the Committee on Homeland Security;
second, to look at our rules and procedures for continuity; and
third, to help enact the expedited uniform special elections
bill.
I would like to also point out how delighted I am to be
working with such prestigious people on this panel, and I am
referring specifically to the distinguished Madam Secretary
Shalala. Even though we are probably on different sides of this
issue, we both don't view it as partisan.
And I would also like to note that the President of the
United States gave her the Medal of Freedom, a well-deserved
honor, and thank you.
I will be brief as my written testimony contains details.
The 9/11 attack focused the minds of House Members on
continuity. Continuity in Representation Act and the
provisional quorum rule work in tandem to ensure only elected
Members of the House exercise power in the people's House. The
members followed the father of the Constitution, James
Madison's, view that where elections end, tyranny begins.
First, they provided a mechanism for Members killed by
terrorism or catastrophe to be replenished by uniform special
elections. Uniformity is important, and I think today we will
probably end up talking about the number of days and all those
sort of things. But it needs to be uniform so you can avoid the
Sturm und Drang of multiple elections occurring at multiple
times, as Mr. Timmons mentioned, back-and-forth power shifts.
That kind of turmoil is something the House needs to avoid. The
people of America don't need to have that happen.
Second, the principals decided to address what is called
the quorum trap, what to do if a majority of Members are unable
to act because of incapacitation. The problem is that if you
are elected, sworn, living, and incapacitated, you are still
part of the denominator for the quorum, and you can quickly
figure out that there are problems there if you can't get a
quorum.
The rule creates a multistep process to allow action by
those Members able to respond. In that sense, it is an
objective way of going about the issue. The Cox-Frost task
force and the committee that I worked for both looked at how to
define incapacitation, but instead we came up with a rule. If
Members can respond, that is how you define the quorum.
The 103rd Congress also held a hearing and floor action on
a constitutional amendment, which I am sure we will talk about
today. The distinguished Americans on this panel have long
believed in a constitutional amendment. We considered a
constitutional amendment in the Congress. Two-thirds
affirmative vote was required. Sixty-three Members voted for
it.
In contrast, the Continuity in Representation Act was
considered over two Congresses. In the 108th Congress, it
passed with 306 votes. In the 109th--excuse me--yes, in the
109th Congress, it passed with 329 votes. Became Public Law
109-55 and was codified into United States Code, Section 8.
At no time in history of the Republic has the House been
appointed--not in the Constitutional Convention when the issue
was decided 9-2, not during the pandemic commonly known as the
Spanish flu, not during wars that threaten the survival of our
Nation, and not during a nuclear attack threat during the Cold
War--to not have uniform special elections risks special
elections called at different times for potential partisan
gain.
And then there is the matter of former Governor Blagojevich
who tried to sell a Senate seat.
On the provisional quorum rule, it utilizes constitutional
rulemaking powers recognized by the Supreme Court. The rule
focuses on the abilities of Members themselves to respond to
multiple-day quorum calls as well as reports that include input
from the Sergeant at Arms, the Clerk, the Attending Physician
to Congress, public health officials, and law enforcement.
I would note that the then-minority objected primarily to
the lack of concurrence of the minority in effectuating the
provisional quorum. There are very few, if any, powers of
concurrence in the House rules.
In closing, the Congress provided for a uniform expedited
special elections and prevented the quorum trap. One question
not answered is what to do if all the Members are killed or
incapacitated.
Rather than appointments, you could consider elected
continuity officers for each State, who would then serve until
uniform expedited special elections occur. I have some more
thoughts on that if we get into it in the questions.
Were a constitutional amendment done, it would take years
for the people's House to have its provisions go into effect,
and the people's House needs to be able to act immediately. So
another question that is left unanswered is, what do we do
while we are waiting for the constitutional amendment to go
into effect?
I welcome your questions. And, again, I thank the select
committee for inviting me here and for this important inquiry.
Thank you.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Mr. Rogers.
I saw Mr. Lewis on the screen, but I don't see him now. I
don't know if he just has his camera off. Oh, I saw--ooh, there
we go. Terrific.
So I will now introduce our next witness, Doug Lewis, who
is joining us virtually from Texas. Mr. Lewis is the former
executive director of the National Association of Elected
Officials, a national nonpartisan, nonprofit organization that
represents the Nation's voter registration and elections
officials and administrators at the city, township, county, and
State levels.
Mr. Lewis, thanks for being with us. You are now recognized
for 5 minutes.
STATEMENT OF DOUG LEWIS
Mr. Lewis. Thank you, sir.
I want to first say that I am impressed with what you all
are doing in terms of looking at these issues. You have done
considerable work so far, and it looks to me like you are
headed in the right direction of trying to find out what to do.
I am very appreciative of the work you are doing.
At the same time, I want to say to you that we looked at it
from a standpoint of an election, how do we conduct an election
in an emergency situation, what can we do to speed the process
and to have the process have validity.
And the first question that we have to ask in any of that
is, what do we consider an election to be? If it is just an
event, if all it is is that we are going to decide that there
is a date certain we are going to have an event, and that event
is a bunch of people show up and they vote on a piece of paper,
and we get--we get some results from that.
Or is it a process in the sense that we have come to expect
in elections throughout the Nation's history that we will have
a time to get to know the candidates, and we have a process by
which candidates can get on the ballot, and that we then have a
time in which we let a primary process work and determine who
is going to win that primary? And from that, then we have a
general election, and we learn something about the candidates
and their positions and what have you.
And so if we are talking about a democracy process, if we
are talking about an election as a process that makes this
happen all over, then we are talking about something that is a
whole lot slower than just doing an event.
And so the questions that have to come, whether we do a 49-
day dive--deadline or longer or shorter, the question really
comes, do we have enough time for a primary process to work and
for all the things that go on before a primary, including
filing deadlines and whatever? Do we have--do we allow
political parties to choose their candidates ahead of time so
that we can then run an accelerated election? What about
independent candidates at that point, and how would they choose
their nominees? Are we prepared for a situation like in
California when they ran that special governor recall? Are we
prepared for 50 or 100 candidates to file for the office that
is now open due to an emergency?
There has to be some process in here that allows us time to
do ballot preparation, to do notification, to do all the things
that we have come to expect from what we expect an election to
be. In the most extreme instance of this, with nothing going
wrong, we can accomplish most of that within 7 to 10 days.
There also has to be time for voters to find out who is
officially on the ballot and where they go to vote on that
ballot when that time comes.
We have some emergency concerns and considerations. Is
transportation available? Do we have electricity? Are there
ways for us to distribute ballots and set up polling places and
have people come in, or are we going to be forced to only hold
it in the daylight hour? If we don't have electricity, how do
we create ballots for you?
Now, certainly we can run one without electricity. We can
run one without even, maybe, gasoline. If we don't have
electricity, we probably can't have gasoline. And so we can do
that, but it means it is going to be entirely different than we
have ever done before, at least in recent decades. And so the
concept of how we do this and the question of whether or not we
can do this depends upon the circumstances that are in front of
us when we do this.
And so staffing an election is going to be difficult in a
national emergency situation. Now, we have learned from
experience that if we are running--if we are running those
specialized elections for vacancies that occur as a special
election, we can run that pretty much with our staff and with
the key volunteers that we have always relied upon. And so we
can--we can make that work, but it means we also then probably
are going to shrink enormously the numbers of polling places
that we have gotten used to. We are going to have to look at a
way that we can make all of that work for the voters and have
locations that they can find, and then probably pay not a bit
of attention to the traditional lines to do that. And so it is
a complex situation.
I want you to know that elections officials will do what
they have to do to make this come off, but we really have to
have you all decide what is the larger context of what is an
election and how do we get there.
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The Chairman. Thank you, Mr. Lewis.
Our next two witnesses are the co-chairs of the AEI
Continuity of Government Commission. I am going to introduce
them both and allow them to present their testimony together.
Donna Shalala is the University of Miami Board of Trustees
presidential chair and professor emerita in the university's
Department of Health Management and Policy. From 2019 to 2021,
she served as a Member of the U.S. House of Representatives,
representing Florida's 27th District. Previously, Congresswoman
Shalala served as the president of the Clinton Foundation and
the University of Miami and as the 18th United States Secretary
of Health and Human Services throughout the Clinton
administration.
A.B. Culvahouse most recently served as the United States
Ambassador to Australia, from 2019 to January 2021. He
previously served as the chair of the international law firm,
O'Melveny & Myers, LLP--did I get it? Close enough for jazz--
and as White House Counsel during the last 2 years of the
Reagan administration.
Both President Donald Trump and the late Senator John
McCain tapped Ambassador Culvahouse to vet their Vice
Presidential candidates.
I don't know if I call you Congresswoman, Secretary,
President Shalala, Donna, and Ambassador Culvahouse, you are
both recognized for 5 minutes, 10 minutes combined. Take it
away.
STATEMENTS OF THE HONORABLE ARTHUR B. CULVAHOUSE, ON BEHALF OF
CONTINUITY OF GOVERNMENT COMMISSION; AND THE HONORABLE DONNA
SHALALA, ON BEHALF OF CONTINUITY OF GOVERNMENT COMMISSION; THE
HONORABLE BRIAN BAIRD, ON BEHALF OF CONTINUITY OF GOVERNMENT
COMMISSION; AND THE HONORABLE MIKE BISHOP, ON BEHALF OF
CONTINUITY OF GOVERNMENT COMMISSION
STATEMENT OF THE HONORABLE ARTHUR B. CULVAHOUSE
Mr. Culvahouse. Mr. Chairman, Ranking Member Timmons,
members of the committee, thank you for having us today. I will
summarize my prepared statement. I am joined with--we are
joined with two other members of our commission, Brian Baird,
and I think Mike Bishop is online, who are former members of
this body.
I will quickly identify what the problem--or the principal
problem, as we see it, and I think Secretary Shalala will talk
about our recommended solutions.
Mr. Chairman, members of the committee, I first visited the
issue of continuity of government in 1987 as the brand-new
White House counsel and received a very sobering briefing on
what helicopter I was supposed to be on in the event of the
proverbial bolt out of the blue.
Since then, I have served on two different Nuclear Command
and Control Department of the Defense Advisory Commissions,
doing a deep dive, again, of the survivability of the executive
branch governance and of our Nuclear Command and Control System
in the event of catastrophic attack.
As stated in my prepared statement, we have extensive and
elaborate procedures, laws, and constitutional provisions to
assure that we always have a President. Now, that President may
not be the elected President or even the elected Vice
President. But our enemies, foreign and domestic, can be
assured that we will always have a President to exercise those
responsibilities.
Our commission and the commission before us, and many other
experts have concluded that the same is not true of Congress,
that under certain cataclysmic, catastrophic scenarios, you
could resolve in not having a functioning House of
Representatives. That by definition is a fault line and a
fissure that requires attention.
The Constitution is clear in Article I, Section 5 that a
majority of each House shall constitute a quorum, if not a
majority of Members then living. And in the case of the House
of Representatives, as you know better than I, vacancies can
only be filled by special election, the result being that it is
abundantly clear in our mind--and we have spent a lot of time
studying this--if more than 218 Members die or are
incapacitated in a mass attack, the House could not convene,
could not make laws, could not pass appropriations, could not
override a veto, could not impeach a rogue President, which--
and could not confirm a Vice President or otherwise check and
balance the executives in a situation of great peril. And that
is the problem that we respectfully suggest most requires the
attention of this committee.
My prepared statement identifies three other issues of, I
guess, lesser gravity, we would say, one of which is that it
would be helpful and beneficial and wise for the authority of
the House in clear situations to meet virtually and remotely. I
don't--we are not purporting to get involved in the debate of
the day, but we can probably all envision of scenarios where
meeting remotely or virtually and voting remotely would be
wise.
Third, the third issue relates to the requirement on
January 3 that Congress assemble, elect a Speaker, adopt rules,
and then on Presidential election years, on January 6, elect to
count electoral ballots. There are no provisions for
alternative ways to accomplish those important tasks in the
event of catastrophic events and people cannot assemble as
required.
And then fourth, the Constitution does not provide for
replacement of severely incapacitated House or Senate Members,
and you can see, again, in a catastrophic scenario where you
would have living Members but who could not assemble and--for
quorum purposes. And, again, you would have the potential for a
House that cannot--does not have a quorum and, therefore,
cannot function.
Mr. Chairman, members of the committee, in all four of
these scenarios, and most especially the first, relating to the
lack of a constitutional quorum by mass casualties, they
threaten the continuity of Congress as a functioning
representative of the American people, and our commission
respectfully suggests that they need to be addressed.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF THE HONORABLE DONNA SHALALA
Ms. Shalala. Thank you very much. Thank you, Mr. Chairman.
Thank you, Mr. Rogers.
Chairman Kilmer, Vice Chairman Timmons, let me address the
exact recommendations. First, the problem that Congress cannot
meet. The Commission, we actually didn't comment on the actions
taken during the recent pandemic, but we noted that there could
be some disaster in the future where everyone would agree it is
impossible to meet in person for an extended period of time.
To ensure that Congress could function during this crisis,
we recommend a constitutional amendment that would give
Congress the power by law to provide for the scenario,
including the possibility of remote participation. However,
this constitutional amendment would provide protections to
ensure that remote floor proceedings would require the in-
person or virtual presence of at least one-half of each body to
meet the quorum requirement, and that Members would be provided
notice and be guaranteed access to whatever mode of meeting
that is envisioned in law.
We also make a recommendation to address the problem of
incapacitated Members. In the extreme case, when the numbers of
deceased and incapacitated Members exceed a majority of either
Chamber, temporary replacements will replace the incapacitated
Member. But any Member deemed incapacitated shall immediately
be reinstated if they declare that they are able.
We make a recommendation for the start of Congress. The
House and the Senate shall each have the power to provide for
the commencement of business at the start of a new Congress,
and that power would include provision for each Chamber to
remotely swear in new Members and commence the business of a
new Congress.
And then we make a recommendation for a change to House
rules. We recommend that the repeal of parts of a House rule
that currently exists. In 2005, House rule XX, clause 5, was
amended to include emergency procedures under which the quorum
of the House may be reduced potentially to a very small number
if only a few Members of Congress remain alive and are able
after a catastrophic attack.
The rule's stated aim was to allow the House to operate
under almost any circumstance. We believe that this rule is
both unconstitutional and unwise.
Finally, on the method of selecting temporary replacements,
we recommended that temporary replacements be drawn from a list
provided by each sitting Member. Using this method, the
temporary replacements would most resemble the representatives
who lost their lives in the catastrophe and would not shift the
balance of power in Congress.
That is a summary of our recommendations. We obviously have
more. I sat on the original commission, and I think it is
important for all of you to consider these recommendations, but
more importantly, to consider what happens and how the problem
of mass vacancies ought to be managed. And it is a decision
that ought to be made quickly, because the possibility is
certainly in front of us.
When I was a young assistant secretary at HUD in the Carter
administration, I was the designee to manage the Department in
case of a catastrophe. And I remember flying in the middle of
the night in a rainstorm to a bunker to manage the Department
of HUD. It was actually terrifying, and we weren't very well
organized.
These kind of catastrophes, as we now know, are now very
much in the future, and in the near future, we simply have to
make these decisions.
Thank you very much.
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The Chairman. Thank you, Congresswoman Shalala and
Ambassador Culvahouse.
Before we move to a period of extended questioning, I also
want to just welcome two additional members of the AEI
Continuity of Government Commission who are joining us today,
two former members. Brian Baird, who represented Washington's
Third District in the U.S. House from 1999 to 2011; and Mike
Bishop, who is with us virtually, who represented Michigan's
Eighth District in the U.S. House from 2015 to 2019.
Congressman Baird and Congressman Bishop will be joining
the Q&A portion of the hearing, so let's kick that off.
I now recognize myself and Vice Chair Timmons to begin a
period of extended questioning of the witnesses.
Any member who wishes to speak should just signal their
request to either me or Vice Chair Timmons. You can raise a
hand, or if you are joining us virtually, you just raise your
virtual hand, and we will be sure to call on you. And if
someone mentions something that you want to pull on that
thread, just give us the hi sign, and we are happy to jump in.
I want to start with our two guests that didn't get a
chance to chat. I have a thousand questions, but let me start
with you all, and I am going to ask you to keep it reasonably
brief. But I am just curious why you got involved in this
effort.
Mr. Bishop, if you want to start, I thought your story of
how you jumped into this was very compelling, and if you can
briefly just share with us how you got involved in this effort.
Mr. Bishop. Certainly. Thank you, Mr. Chairman and Ranking
Member Timmons, members of the committee. It is an honor for me
to be here today. I am grateful for your time on this matter.
Well, I am a late addition to this commission, to answer
your question, and having had a personal experience while
serving in Congress, that really piqued my awareness and
certainly my sense of responsibility to be a part of an
immediate solution, which I think is to address an imminent
threat to our democracy.
I was on the baseball field with my Republican teammates
and colleagues back in 2016 when a lone assassin opened fire on
us with a semiautomatic rifle. As you know, the shooter
seriously wounded our good friend, Steve Scalise, and several
others, and but for the heroic acts to defend us, there is no
question in my mind that the assailant very well could have
taken out all of us.
At the time, it was a--you know, for us, it was a personal
matter. It was a matter of life and death. But it didn't take
long to soon realize that this had far greater implications
than just a human catastrophe. And in retrospect, I can't
believe it took this event to make me realize, to make us
realize the implications of what a planned attack on Members
could mean to the institution of democracy.
But there is no question that we are all vulnerable, and
this is just one illustration of the very grim realization that
today we face a substantial number of ridiculously imminent
threats to democracy. And a catastrophic event is just around
the corner every day, and it can subvert the constitutional
powers of Congress.
We live in a very dangerous world, and it is more and more
every day. The growing threats of foreign adversaries,
terrorism, extremism, both foreign and domestic, and as you
mentioned earlier, natural disasters are now--you know, we
understand the implications of--the dramatic implications of a
global pandemic.
Now more than ever, the threats exist that pose a threat to
our country, and it is conceivable--it is at a time, which
scares me the most, at a time of our greatest time of crisis,
without a legitimate democratic government and no ability
whatsoever to respond to a real existential crisis or threat.
And we are--we are all on notice. We have a real problem on
our hands, and we can't afford to ignore it any longer. And it
is not--it is not difficult to conceive of a single event,
planned or otherwise, that would instantly render democracy
powerless. And we have dodged a bullet in the past, so to
speak, but who knows when our luck will run out.
So to answer your question, in summary, Mr. Chairman, the
reason why I got involved in this commission is because I feel
compelled to be a part of the solution of an imminent threat to
our democracy and really the future of our country and every
American citizen.
I really wish I was in Congress right now because I would--
I would really want to do whatever I could to exercise every
power I had in my office, leverage every resource of my office
to take up this matter with a sense of urgency.
So thank you very much for allowing me to be here today. I
am happy to answer any questions you might have. And I am
grateful for your attention to this matter and for being a part
of what you are doing today.
The Chairman. Congressman Baird, do you want to just
briefly share your----
Mr. Baird. Thank you, Mr. Chairman, Mr. Vice Chair, members
of the committee. It is good to see my good friend, Mike
Bishop, here. And thank you, Mike, for your thoughts, and
thanks to the other panelists today for theirs.
You asked how I became involved with this. On September
11th, when we saw the second tower get hit, I had a window on
the seventh floor of Longworth House Office Building. We
overlooked the Pentagon and national airport. And I asked my
staff to come into the room. I said, look, if they hit D.C.--or
if they hit New York, they are probably going to hit D.C. I
would do it if I were them. And I said, we can see--we can see
the airport. We will be the first people to see what might
happen, and it is our obligation to warn people if it does. And
we planned what would happen if we saw something.
I went back to my office. Less than 5 minutes later, the
event happened. We saw the fireball emerge from the Pentagon,
and we executed a plan in which the male members of my staff
ran floor to floor to floor telling everybody, you got to get
out of this building, another plane could be coming easily,
because we just saw something.
But as I ran through the building, in a surreal moment, I
said, what happens if they kill us? What happens to this
institution? What are we going to do? So my first order of
business, get my staff out of the building, get other people's
staff out of the building. Got home, took some preparatory
measures.
And then all night I spent the time trying to read the
Constitution, read the House rules, et cetera. And I have been
doing this for 20 years now--for 20 years--trying to say, we
are not prepared. And we still aren't.
And let me just bring it to this moment today. It is
appropriate that we are here today on April 6, and the reason
that is appropriate is one of the central issues at stake here
is what constitutes a quorum.
It happens that April 6 was when the first Senate and House
convened. They tried to convene on March 4. They tried to
convene on March 5. They couldn't do it, and they couldn't do
it because they lacked the quorum.
They didn't say, we are going to lower the provisional
Member of the House to chosen, sworn, living, and present. They
said, we don't have half the people here, we can't meet
legitimately. And they waited till April 6, the same day we are
here today. So when we talk about losing the legitimacy of a
quorum, it is a real deal.
On top of that, there is this question of, must we always
have procedures in place now that we have had forever, and will
those continue to work? The short answer is that this
commission and the prior commission studied this in great
detail. And by the way, both commissions did not start--neither
commission started and said, what we really must do is amend
the Constitution. They all said, as Vice Chair Timmons pointed
out, what is the problem stated.
And Vice Chairman Timmons, you hit the nail on the head, as
did the chairman. We have not only got the issue is the quorum
valid, but we have got an issue of legitimacy.
If the balance of power changes, and as Mr. Bishop pointed
out, by a significant number that you now have a different
majority than the people elected through either happenstance, a
train wreck, as the Republican Conference experienced on their
way to their retreat a while back, a plane wreck, as Mr. Kilmer
knows, oftentimes that westbound flight has the entire
Washington delegation on it.
One of the issues of legitimacy in a representative
government is do you have a representative? Is someone there to
uphold your interest? And if your delegation has been
eliminated, the legitimacy of representative government is
lost.
So when we--I will summarize and close with this. When we
first started this, it was all about catastrophic losses. More
recent events have convinced me that we have to look at the
legitimacy of the institution. And if your State has no
Senators or no Representatives at a time of national crisis,
you are not part of that representative government. We need to
fix that.
This commission has recommended, as did the prior
commission, a mechanism that is elegant, efficient, would
obviate concerns about the quorum, would obviate the concerns
that Mr. Lewis pointed out earlier about how fast can we hold
an election, would make sure that every person in every
district in every State has representation.
And last but not least is this vision: Imagine a scenario,
a horrible scenario, in which the Capitol gets hit during the
State of the Union or the inauguration. We have lost the
President and Vice President. We know the scenario. We have
lost the House and the Senate and, by the way, the Supreme
Court. What do we do?
The provisions this commission has recommended would allow
this body, the House and the Senate--if the Senate takes
comparable action at some point--to reconvene 24 hours after
the most abusive and destructive strike in the history of the
country. Twenty--four hours later, the Congress of the United
States, Article I, is back and functioning with credible people
chosen by the last person elected to represent the people. And
they get back to business.
It is a powerful message to our people and to our
adversaries and to the free world, which would look to us at
that time of chaos and say, my God, what happens now? We have
an answer if we enact the proposal recommended by this
committee.
Thanks for letting me speak.
The Chairman. Thanks very much.
I am going to put a hold on my other 999 questions and kick
it to Vice Chair Timmons.
Mr. Timmons. Thank you, Mr. Chairman.
So, again, what are the problems? We got policy problems
and we got legal problems. The policy problems are, do we think
it is appropriate if a certain number of members of the
majority were to meet an untimely demise, that there is a
motion to vacate the chair, and balance of power shifts for 100
to 150 days? That is just a policy problem. The world is going
to go on.
The next is if, worst-case scenario, State of the Union
attack, 30 Members of the House elect a Speaker. That Speaker
becomes Acting President. That is a policy problem. There is a
legal problem surrounding it, but that is a policy problem. We
probably don't think that is a good idea.
But the legal challenge is this: If the Speaker that is
elected by 30 Members of Congress tries to become Acting
President, and the designated survivor of the opposing party
says uh-uh, and then they say that you don't have a quorum, or
you have the impeachment question, and the Acting President--
the designated survivor says there is no quorum. So that is a
legal question which would create a crisis in government if
this quorum issue isn't settled.
So I guess the question is, for true continuity of
Congress, continuity of government--and I am going to ask Mr.
Rogers this--if on April 26, when we come back, we have a
quorum call, and keep in mind there is only 433 Members
currently serving in Congress--two passed away--and 217 Members
of Congress, press the present button, is that a quorum?
Mr. Rogers. No [inaudible].
Mr. Timmons. Okay. So 217 out of the 433, which is less
than half of 435, would constitute a quorum because two Members
have passed away, and we are going off 433?
Mr. Rogers. Well, if the Speaker [inaudible].
Mr. Timmons. Okay. Mr. Culvahouse, what do you think about
that question?
Mr. Culvahouse. No.
Mr. Timmons. Secretary Shalala?
Mr. Baird? Congressman Baird? No? Okay.
Mr. Baird. No.
Mr. Timmons. So can we get an answer? How do we answer this
question absent the constitutional amendment which will take
forever? Is there a way to answer this question? Because really
that is the question. If we can get an answer to that question,
everything else is just a policy issue. It is not a continuity
of Congress issue.
So is there any way that we could get an answer, I guess
from the Supreme Court, as to whether 217 Members of a 433-
Member body constitutes a quorum?
Yes, Congressman Baird.
Mr. Baird. Mr. Chairman, I respect the line of questioning.
I think it is important. The current rule takes it to a much
different level than what you are asserting. And as you said
earlier, the current rule would allow three Members or two
Members, that is the rule of the House.
It is impossible to imagine that the Framers of the
Constitution intended that a House rule could allow three
Members out of 435 to declare themselves a Congress, elect one
of the Members as Speaker, and then deem that Speaker the
President of the United States under the----
Mr. Timmons. But, Congressman, we literally could do this
on April 26.
Mr. Baird. What is that?
Mr. Timmons. We could--217 people could vote President
and--I mean, that could happen. And is there any way that we
would then be able to get an answer to this question?
Mr. Baird. You could--you could----
Mr. Timmons. Mr. Rogers?
Mr. Rogers. If I understood your hypothetical, two Members
have passed away?
Mr. Timmons. Two Members have passed away, so there is 433
Members. 217 is less--was less than half of 435, so it is half.
Mr. Rogers. Clause 6 of rule XX, when those two Members
passed away, the Speaker takes cognition of that, the whole
number of the House drops from 435 to 433. You have 217 Members
who----
Mr. Timmons. Sure. Could you make an opposite argument to
that? If you were advising the designated survivor in the
worst--case scenario, and the incoming Speaker of the House was
in the opposing party, and you really thought it was--I mean,
you could make the opposing argument, I would imagine.
Mr. Rogers. [Inaudible.]
Mr. Timmons. And you would if you were advising the
designated survivor against the incoming Speaker.
Anyways, so I just want to throw out the idea of, if there
is a way we can get this question answered, where the four of
you agree--go ahead. Yes, sir?
Mr. Rogers. [Inaudible] you go on down a list. Actually it
is something the committee would look at. I believe the
Secretary of the Committee on Homeland Security, who obviously
has visibility into things when we are in a time of crisis, is
below, I believe, the Secretary of Agriculture. You know----
Mr. Timmons. Sure.
Mr. Rogers. [Inaudible] so the answer right now would be a
question of law that the elected Speaker ----
The Chairman. Sorry. Can you make sure your mike is on?
Sorry.
Mr. Rogers. My apologies. I am a rookie at testifying. So
I----
Mr. Timmons. But, again, the designated survivor would be
the Acting President until the rump Congress, the 30 Members
create a new Speaker. That Speaker would, under the 25th
Amendment, go in above them, and then you have chaos.
Anyways, I think we get the quorum question, and if we can
get an answer to that question somehow, it will resolve the
legal issues, not the policy issues.
Last question really quick. Mr. Rogers, could the House
adopt a rule limiting the ability for a motion to vacate the
chair for a limited time under limited circumstances?
Mr. Rogers. Well, we used to say at the Rules Committee
that if you have a majority, you can do just about anything.
Mr. Timmons. But could the majority--but could the majority
limit the minority's ability under--if the majority no longer
has a majority because people passed away, could the majority
limit for 150 days the minority's ability to do a motion to
vacate the chair through the House rules?
Mr. Rogers. Well, you would have to pass the rule. So you
would have to have a majority of those Members present to vote
for it.
The question of electing the Speaker is in the
Constitution. So the question would be, are you violating the
Constitution in some way by postponing the vacate? But the
Constitution is--must elect a Speaker. It doesn't talk about
vacate. So I think under your hypothetical, it is possible you
could do that.
Mr. Timmons. Thank you, Mr. Chairman. Sorry for taking so
long.
The Chairman. All right. I have got Mr. Latta, then Mr.
Loudermilk, then Mr. Phillips, then Mr. Perlmutter.
Mr. Perlmutter. I have just a comment on this----
The Chairman. Go ahead.
Mr. Perlmutter [continuing]. Conversation. Because I think
I want to help Mr. Rogers here. The way it would work--and this
sort of ties Mr. Baird and Mr. Rogers together. The way it
works is, so, for instance, I was in the chair. I said, based
on the deaths, and we have got three other people out, that the
number of the whole House is 430. This is what I said Friday,
okay? And so then that is the base number. But then what
happens--and so that--you work off of that number, except now
we have had the catastrophe, and the catastrophe changes that
number because everybody's gone or a certain number are gone.
So it isn't like--so then you go to the rule that we have
in place as to how do you deal with a catastrophe. So it isn't,
the 217 isn't legal or not legal or constitutional. It is what
happens once the crisis hits, changes the number from what the
whole House number was, 430, now it is 30.
Mr. Timmons. But the three of them disagree with whether
217 Members constitute a quorum on April--look--200----
Mr. Perlmutter. I am with Mr. Rogers on this one.
Mr. Timmons. Okay. But I am just saying, I mean, yeah, I
get--that is the problem, people disagree.
Mr. Latta. Well, thanks very much. And I want to thank our
witnesses for being here.
And of all of the committee hearings that we have been
having on the Modernization of Congress, I think this is the
most serious, because, again, it really goes to the fabric of
our Constitution and of this House. And so I think when we have
these discussions today, it is really important to take in a
lot of things into consideration, especially what our Founders
wanted and how that Constitution has lasted for this many
years.
And, Mr. Rogers, I know in your written statement, you
know, you go back to the Constitution Convention 1787, and I am
a historian by training, and it is what I read all the time.
And I think that, you know, a couple of the quotes that you
have in here, especially with Madison--and, again, Madison was
one of the most prepared persons that ever went to probably the
Constitutional Convention. Where elections end, tyranny begins.
And you also quote Mason. The people will be represented.
They ought, therefore, to choose their representatives.
I think, you know, again, they went through, in a 4--month
period of time, for those that stuck it out in Rhode Island,
that never even showed up, that they went back and forth to
give us what we have today. And I think that, you know, the
Founders really gave us something that we have to make sure we
preserve.
But I think--you know, I would like to get your thoughts on
a couple of things to start with, Mr. Rogers, because, again,
when you talk about, you know, the War of 1812, on August 20,
1814, when Admiral Cockburn stood upon the Speaker's chair of
the House of Representatives and said, Shall this harbor of
Yankee democracy be burned? He led his troops all said aye, and
they set fire to the Capitol.
But, you know, it was right after that, then, did our
Congress, you know, just end up not coming back to Washington?
No, they went to the Blodgett Hotel and met.
And not long after that, in 1815 to 1819 when they built
the old brick Capitol, you know, we met. It wasn't that they
said, we were going to, you know, have to have a different
forum.
And then, you know, you also go in--and I am just going to
talk for a couple of seconds more, but, you know, when you look
at the Civil War, when you had the southern States leave the
Union, and then in 1864, in July, when General Early and the
Confederate troops attacked Washington, and Abraham Lincoln
went out and actually saw the attack, you know, we didn't see,
you know, Washington flee.
But I would just like to get your thoughts on, you know,
what our Founders were looking at at that time.
Mr. Rogers. Well, thank you, Mr. Latta. Yeah, my written
testimony goes into it more. I thought it was very interesting,
you had a Federalist, the father of the Constitution, Mr.
Madison, and an anti-Federalist, who--Mr. Mason, and they
agreed, elections. Got to have elections.
And it was thoroughly debated. There were--it came up
several times in the Committee of the Whole, and then it came
up for the final vote, which I mentioned went 9-2 with one
State divided.
So about 16 percent of those voting at the time--or States
voting at the time wanted to have appointments, and 75 percent
wanted to keep elections.
I think we are in a, you know, an inflection point in our
history with all of the--the current pandemic, the violence,
all of the other things that are going on. But we have to also
look back to the time in which the Founders and each successive
group of Members sitting in this great House, they faced some
pretty existential threats too.
I am 53. I remember having to shelter under my desk for
allegedly what would be good for a nuclear war attack, which I
don't think would have helped at all. But in each time that the
Congress has faced challenges, they have enshrined the
elections. And the people I worked for at the time--Mr. Dreier,
Mr. Sensenbrenner, and the House leadership--they wanted to
make sure that we had elections. These are mechanisms.
Constitutional amendment, it has some interesting points to
it, but it would take time. What would we do in the interim? I
think the average time of adopting a constitutional amendment
is a fair number of years. So you are still going to have to
come up with something to do even if you were to adopt the
constitutional amendment.
But the Founders didn't want appointments, and they
certainly--you know, at no point did Madison talk about the
politically connected picking their successors. In fact, he
talked about, he wanted, you know, the wise and the foolish, he
wanted the discerning and the undiscerning--the full quote is
in my written testimony--because the House has to represent the
people.
The great compromise was the Senate is going to represent
the States, and the House has to represent the national will,
and the way you get there is elections.
Thank you.
Mr. Latta. Let me ask, Mr. Lewis, if you could have your
mike on there. You know, you go through in your testimony
really looking at--on the vacancies and also talking really
about how you would be fulfilled and at the local level. But,
you know, you go through from transportation, to cars running,
electricity, to ballot stock being available, you know, how--
you know, do we even have a mail service.
And, you know, some points that, you know, if you are
thinking about what could happen out there, not just for the
people that have to put on the elections locally, but also what
could happen here--let's just say something would happen that,
well, you know, Washington's obliterated.
Again, where would Congress meet? Do we have to have
another place in the country that we would meet? Again, what
about telecommunications? You know, I am the ranker on Energy
and Commerce's Telecommunications Subcommittee, and we can't
even get our own--you know, when we have virtual hearings a lot
of times, we can't get our mikes to work. And so the question
is, you know, would people be fairly represented there?
What if roads, what if bridges, what if all the bridges
that would cross the Mississippi to Missouri, and Mike up in
Michigan, you know, what happens if the bridge is destroyed,
that you can't get from the upper to the lower part of
Michigan?
That, you know, if we have a situation that air travel is
stopped, if we had an electromagnetic pulse that would prevent
things.
But, you know, Mr. Lewis, you know, in your testimony, you
know, you talk about all these things. Could you conduct--could
you conduct an election in a situation like that, to try to
then say, this is how we are going to get people in? And how
would you also have fairness if one part of the country could
actually do an election but the other part couldn't?
Mr. Lewis. Well, of course, your last question is one that
is a policy question that I think you guys as policymakers are
going to have to answer.
But from our standpoint, are you asking if we can conduct
an election? Well, one, I guess that presupposes that society
is in such a condition that some of it works, some parts of it
work, even if all of it doesn't work.
We can adapt to pretty much anything that is thrown at us,
I think. We may not be able to do it on the timetable that some
folks have asked, because elections officials are going to be
just like the general public. If there is no way for us to get
around, if there is no way for us to have communications, it is
going to be very tough for us to do the job.
Now, having said that, remember that America, during the
time of the Founders, as you all are talking about, was a very
rural society and very far apart, and people would travel for
days by horse or mule to get in to the local polling place and,
in many instances, vote by hand.
If we got to that point, we can duplicate that, we can
replicate that. Hopefully, that is not the situation. But I
think in our case, as elections administrators, what we have to
plan on is the worst possible scenario and then work up from
that as to how we do anything else.
And so the answer is, even if we don't have electricity, we
can probably still have an election. But it will be very
different from the kind that we have had before, and
participation by wide segments of the populous are going to be
more difficult.
Mr. Latta. All right. I thank you very much for your
answer.
Mr. Chairman, just indulge me for one last----
This is from the National Journal from March the 17th, the
first paragraph: Ukrainian lawmakers still showing up to vote.
As fighting intensified around the suburbs of Ukraine's capital
of Kyiv, entire neighborhoods reduced to rubble, over 300 of
the country's parliamentarians gathered in the city to vote.
I yield back.
The Chairman. I want to give Mr. Baird a chance to swing at
that first question, but first can I--Mr. Lewis, I couldn't
tell from your written testimony how fast you could actually
do--like barring the electromagnetic pulse and the roads all
caving in and all of that, if everything is fine, how fast
can--you know, in your testimony it referenced 75 days. The law
says, I think, 49 days. What--if everything is hunky-dory, you
still have to get nominees, you still have to print ballots,
you still have to make sure military voters get their ballots.
Can you ballpark a number with all of the caveats set
aside?
Mr. Lewis. Realistically, what I think we have said before
and what we have said consistently, the closer you get us to 60
days or more----
The Chairman. 60 days.
Mr. Lewis [continuing]. You then have an election that
looks like an election and what most people in America would
interpret as an election because you have got enough time to
talk about it and find out how to get your candidates and that
sort of thing.
At the same time, even that--for instance, let me take just
one little piece, ballot stock. Ballot stock is very
specialized. It is not just plain paper. It is something we
number so that we can account for all of it. On a short-note
basis, we are unlikely to be able to produce enough ballot
stock. So what we would have to do is do a workaround and do
plain paper, but that is so difficult to then prove that it
wasn't manipulated. You just sort of have to accept some things
as you go through this.
The Chairman. Gotcha. Thank you.
Mr. Baird, do you want to quickly just reference? And then
I am going to call on Mr. Phillips because I know he has got to
go to another committee, and then I will go back to Mr.
Loudermilk.
Thank you for your flexibility.
Mr. Baird. Thanks, Mr. Chairman.
A couple of things. One, I have submitted extensive written
testimony, and I would encourage the committee to review that.
Also I'll be responding to Mr. Lewis's testimony.
But I want to address something--I am sorry he is not here,
but Mr. Latta raised. The quote actually--first of all, we all
agree that under normal circumstances elections are the way to
choose your Representative. We all agree to that. But if you
can't have an election because it is unsafe to do so, or
because it takes too long, it is also important to still have
representation as important decisions are made.
So the question is not either elections or no elections.
Nobody on this committee is saying do away with elections. We
are saying have a replacement temporarily until such time as
elections can be held, as, Mr. Lewis points out.
With regard to the Madison quote, history is important. The
quote as cited is not correct. The actual quote was not when
elections end, tyranny begins. It was when annual elections
begin.
Madison--we don't know if it was Madison or Hamilton. At
least Wikipedia says it was Madison. The Library of Congress
says it could be Madison or Hamilton. But here is the point:
Madison was arguing in that phrase about should we have annual
elections, biennial elections, et cetera. And he actually said,
Isn't it interesting how Proverbs-like when annual elections
end, tyranny begins could get used out of context, which they
are in this case.
Now, a couple of other quick points. Look, it is not fair
to say, or accurate to say that the Framers only accepted
elections, direct elections as valid means of representation.
The United States Senate, for 125 years, was not directly
elected. The Framers accepted that. Beyond that, the 17th
Amendment which vested the power to choose Senators in the
hands of the people still allowed non-direct replacement via
Governors, which I think is unwise and we ought to change. But
there are plenty of precedents in our own history, including
the existence of the Senate itself.
One other thing, Mr. Timmons is from South Carolina. Your
State actually has enacted a very similar provision to that
which the Commission is recommending. The National Council of
State Legislatures has reviewed extensively succession
provisions in the State legislatures, and you will find that a
number of actually fairly conservative States have language
almost identical to what we have got; that upon the election of
a Representative in the State, the Representative shall choose
a list of successors. In the event of significant losses, from
that list the replacements will be made.
That exists in South Carolina as a matter of fact. So if we
are saying that only elections are valid for representation or
you have tyranny, then the United States Senate is a tyrannical
organization--sometimes we feel that way, I know--and we are
also saying the State legislatures are tyrannical. It is just
not a fair and valid comparison.
The Chairman. Go ahead, Mr. Phillips, and then I have got
you, Mr. Loudermilk.
Mr. Phillips. Thank you, Mr. Chairman.
This hearing is a great reminder that we overindulge in
retrospect in this institution and not nearly enough in
prospect, and I am grateful for this.
You know, in my estimation, continuity requires both
people, place, and process, and we are appropriately focusing
on people, but particularly Members. But I do want to call
attention to the fact that this place would not operate without
extraordinary staff and house officers, parliamentarians, et
cetera.
Also process, you know, let's say we did proceed with
selective replacements based on current Members. I know how
hard it is in my second term to understand how this place
operates. I cannot imagine being a new delegate going to a
place where you are completely unaware of process or
parliamentary procedure.
And also place, you know, where would we retreat to? Would
it be military base perhaps?
So I would just ask that maybe we spend a few moments--I
would like to hear all of your thoughts on this subject. How
micro should we get? How detailed should a plan be relative
particularly to process, explanation of rules, how a Congress
would communicate if it is no longer in Washington, assuming
Washington is non-inhabitable, for example, and also, again,
the support teams that make this place operate.
Maybe, Mr. Baird, if you want to start.
Mr. Baird. Thank you.
You are exactly right. In my own testimony, written
testimony, we have to find a way to have continuity of staff.
I would also just quickly say part of the advantage of
Member-designated replacements is you will get a lot of people
in that replacement position who have already served in
Congress. In my case I would select former Congressman Don
Bonker. He was two predecessors away, same party, centrist
Democrat, knows the district inside and out, super smart. You
would have me, I am dead. Sorry. But you have somebody just as
good as me and who understands the institution. Not everybody
would be chosen that way. But you would have a critical mass.
And if you pair that with some continuity of staff and, as you
said, with procedures allowing for remote meeting if the
circumstances demanded, you can reconstitute this body in 24
hours.
Mr. Culvahouse. I agree. It needs to be micro, and if you
look at the--as I indicated, I served on two Department of
Defense Nuclear Command and Control Advisory Committees, and I
also served on the President's Foreign Intelligence Advisory
Board.
On the executive side, the planning is elaborate. It is
micro. It is very detailed. As I--when I met previously
informally with the chairman and the ranking member, I
indicated--and it's really all I can say--I can say I served as
an exercise president once, and I was very impressed on the
executive side at the level of detail. When you turn to the
rest of the government, not so much, not so much.
And I do think, in addition to fixing this quorum problem,
which I firmly believe and every lawyer that serves on our
committee agrees that is a serious problem, I would encourage
you to consider extensive planning. I mean, we worried about
the bolt on the blue. When I was in the Reagan White House, I
was in the second helicopter. I don't think I would have made
it probably, but all we cared was that the President got out
and the Vice President. But I do think we need to have a
resilient government. That is a matter of deterrence. It is a
matter of deterrence, and we have Mr. Putin not disclaiming
nuclear weapons, and so we are back to where we were in 1987, I
am afraid to say, and work needs to be done.
Ms. Shalala. I agree with my colleagues. The problem that
we are having trouble with is how do you get replacements,
because the election people tell us it will take too long to
set up an election. That is a technology problem. That is an
investment problem. And States have solved this problem. Oregon
does it by sending out ballots. I mean, there are ways of
dealing with the technology problem with investments.
None of us believe that we should have anything other than
elected Representatives, and that anything we do should be
temporary to pull the government together, but we also don't
want to change the mix that the people elected. We don't want
to shift from one party to another just because a certain party
lost more Members.
So overlying all of this was our desire to keep the
political mix, which made it more complicated, obviously. But
we really believe in elected Representatives. Temporary
replacements, it seems to me, we can deal with, and we can
certainly deal with the technology and the difficulty of a
quicker election with more representation.
Mr. Phillips. I wholeheartedly agree.
You know, my concern is, even with great people, without a
knowledge of process, any institutional memory, place, any of
that--without that predetermined and somewhat prepared for, I
am afraid even the best mechanism by which we replace people
still might not be satisfactory.
Ms. Shalala. Well, most of the--I mean, Brian identified
who he would have replaced.
Mr. Phillips. Yeah.
Ms. Shalala. Most of us would have replaced someone with
legislative experience of some kind or another. I mean, I don't
think it took me that long to figure out the process.
Mr. Phillips. And that is part of my question, is should we
have maybe some standards by which these, you know, successor--
--
Ms. Shalala. We certainly could do some orientation. We
certainly could do some quick orientation.
Mr. Phillips. And maybe pre-orientation, you know,
prospective orientation.
Ms. Shalala. Yes, there is no question about that. But
those are all the details.
And, finally, I want to comment on the organization of the
government. The agencies have detailed plans that they
exercise. They go through exercises all the time.
Mr. Rogers. Thank you for the question.
When I was at the Rules Committee and we were dealing with
the continuity, we participated in annuity exercises. We went
to a remote location. We had procedures. The rules, the
precedents, and everything were backed up on very hard and
mirrored sites that are located far away from Washington, D.C.
So I think perhaps the Select Committee could do some
inquiry and see where those things are at now. That was 17
years ago when we did those sort of exercises and processes.
I certainly agree the need for staff--of course, the
original Congress didn't really have staff. I think they had a
clerk. And as a staffer, I understand that role and agree with
it.
A couple of other quick points. You know, it might be that
the immediate area of this building or the Capitol is damaged,
destroyed, whatever. But they did put as a consequence of the
Cox-Frost Task Force the ability of the Speaker to convene in
another place within the seat of government. The seat of
government is kind of an interesting term they chose. I don't
know, Walter Reed Hospital might be seat of government, or
someplace else. And certainly, I think Mr. Latta mentioned that
they moved to the hotel when they had to during 1812. But I
think you could be pretty generous about where you moved the
seat of government to. Of course it involves transportation
issues and other things, but----
Ms. Shalala. Go back to Philadelphia.
Mr. Rogers. Go back to Philadelphia.
A couple of other points. One, you could have a situation
with a lot of Members incapacitated but able to vote, They just
couldn't come and do it on the floor. So the committee might
want to look at something like the Sergeant at Arms being sent
out to canvass the vote, you know, some sort of certification.
Let's say, God forbid, that a bunch of people are in Walter
Reed because of some horrible event, but they are still--you
know, incapacitation doesn't necessarily mean coma. I think
that is what they thought of in 2004 or 2005, but you could
have something like that, so some sort of canvassing by an
official agent of the House.
And then the last point is I have put together some
thoughts about what happens if all of the Members are killed or
all are incapacitated, and it kind of draws on the
constitutional amendment idea but without changing the elected
nature of the House.
What it would be, if I can just briefly mention it, is, so,
the House chooses its officers. You elect the Clerk. The Clerk
presides over the House until the new Members are sworn in and
the rules are adopted. The Speaker, as everyone knows, doesn't
have to be a Member of Congress but has the ability to vote.
So drawing kind of on those two principles, an idea that a
person some of you may know, long service to the House, Billy
Pitts, he was staff director of the Rules Committee, he was a
minority officer of the House, and several other things for Bob
Michel. He and I kicked around some ideas, and the idea in
brief would be that the States could elect two continuity
officers each. They don't come to Washington--I mean, they come
to Washington for orientation and training and all the things
you correctly point out, but they stay out in the States. They
are the continuity officers that are duly elected by the
people. Each Congress, the Congress could decide, because it
has the power of deciding who actually gets seated, so you
could also have a vote on opening day: This slate of people
created by all the States are our continuity officers. Two
could be from different parties, same party, but allow each
State to decide. And then what you have there is officers who
could come and could act in the stead of Members, could vote,
could do other things.
I still--I mean, I immensely respect the work of the
Commission and the people here. I still have a really hard time
with the idea that--and I have a hard time based on what I have
read of the Constitution and the Federal Conventions and
whatnot, the idea that you are elected to the House and take
the oath and, therefore, you are a Member, and then you have
somehow sort of a property interest that you could convey to
someone else, which is sort of the idea of I have in my back
pocket my successor.
Some people talk about a durable power of attorney or some
other mechanisms, but that to me is not how our Nation was
founded. That sounds a lot more like aristocracy.
But thank you.
Mr. Phillips. Thank you, sir.
I yield back now. Thank you.
The Chairman. Mr. Loudermilk.
Mr. Loudermilk. Thank you, Mr. Chair, Mr. Ranking Member,
for allowing non committee members to participate in this. This
is very intriguing and something I would like to follow this
process even further.
But as a member of House Administration, we are invited to
come in and listen because this is somewhat dealing with
elections. And this isn't the direction of the questions I was
going to give, but something Mr. Phillips brought up prompted a
question.
Especially when it comes to a temporary solution, I look at
the idea of having a designee, designated-successor type thing.
I can also see several problems with that, that that becomes a
political tool for the next election when you decide to leave
that this is: I was already selected by so and so. Therefore, I
have got an endorsement. I could also see a situation where
that puts additional stress on a Member because there will be
campaigns to become that designated person, right?
But I have got one fundamental question, because I am
intrigued, that as I try to do quite often, this committee is
going back and looking at the original intent of the
Constitution. And I think, inevitably, if we come up with a
solution, it has to be consistent with that original intent or
this whole thing gets caught up in questions in--you know,
throughout the future with Supreme Court and everyone else.
So real quick question. Mr. Rogers, maybe you are the one
to answer this. The Constitution clearly says that the House of
Representatives shall be composed of Members chosen every
second year by the people of the several States. So that is
election.
Would a temporary replacement constitutionally even have
the authority to act as a Member of Congress under the
Constitution because they were not selected by the people of
the State?
Mr. Rogers. That is an excellent question, Mr. Loudermilk.
And, again, not to keep going back to this idea, but the
idea of continuity officers that we came up with in preparation
of the hearing is they would be elected in the States, so they
would have some imprimatur of the election.
Mr. Loudermilk. Okay. And someone else have a--oh, yeah.
Mr. Culvahouse. Congressman, I mean, the answer is no, but
we are proposing a constitutional amendment.
Mr. Loudermilk. Okay.
Mr. Culvahouse. So the constitutional amendment would
empower that successor, just like the temporary appointments on
the Senate side.
Mr. Loudermilk. Yeah.
Mr. Culvahouse. Now, the one point that I think is
important to make is the Framers obviously created the House
with only elected Representatives, did not empower for
temporary appointments. And Brian eloquently--but the one thing
that the Framers were very clear about and the one reason that
I think every lawyer who has looked at this comes down on the
side of it is the majority of the whole House is the quorum, it
is the Framers disliked intentionally the idea that a rump
group of the House, a handful would purport to be the House of
Representatives. And that is partly because there was a lot of
jealousy and distrust amongst the early States. Rhode Island
and Maine was afraid that the larger States would act
inappropriately--or act not in their interest, I guess, is a
better way to say it.
But, you know, I remember my first job out of law school, I
was working for Howard Baker on the Senate staff, and there
were a number of old lions of the Senate--and they were old
lions--who were distrust--you know, who still didn't like the
fact that Gerald Ford was going to be confirmed to be Vice
President because that was inconsistent with the Framers. But
it was--you know, we are fortunate that that happened.
And I think here the most--the least Representatives, the
least Representatives' scenario that you can envision is that
you have 30 House Members after a nuclear attack, or a weapons
attack that purports to act as the House.
Mr. Baird. Congressman, you raise a really interesting
point, and it is a difficult challenge. Clearly, the Framers
wanted there to be direct elections in the House, but they also
wanted there to be representation in the House. If you have no
representative at all--what we are left with is kind of a
paradoxical situation, we are saying having no representative
at all is somehow better representation than having a
representative chosen on your behalf temporarily by the last
person you elected, which is what we propose.
Mr. Loudermilk. Right.
Mr. Baird. There is a debate about, discussion that has
been said a lot, Well, you can't pass a constitutional
amendment rapid. Actually, you can. There is nothing in the
Constitution that says you can't. It is in the best interest of
the States to ratify quickly if this body will act. Why?
Because then every State is assured that even in catastrophic
circumstances, they will have temporary replacement and have a
voice in that Congress in the Article I branch until they can
have direct elections. So we could do it quickly, we could
ratify quickly, and you would have representation.
Mr. Loudermilk. One of the things that I heard discussed--
this--I love the thinking outside the box. And we talked about
that there were originally appointments made to the Senate by
the State legislatures. The design of the Senate and the House
were specifically different during the time. The State
legislatures represented the interests of the State, and the
House, the people. So it kind of eliminates that in my mind.
The other thing is the only way that I see constitutionally
you could do this is--what you are talking about is electing a
vice Congressman is really kind of where you are going with it,
right, sort of like the Vice President, somebody to accede to
it.
Politically I can see a lot of issues with that. A lot of
Members may decide to have a family member. I mean, you think
of the districts out there and how polarized we are right now,
and I would double my security, you know, if there was somebody
who could immediately accede to that position.
But one of the things I am looking at is I don't believe
there is a silver-bullet solution to most issues, and I think
this is one that a multiple approach is one to look at. And as
I am looking at it is, what is--what can we do to reduce the
time that you do something temporary? If you can significantly
reduce that time, then to convene a House of Representatives
that is duly elected.
Georgia, the State of Georgia, has actually addressed this
in code. In its current code in Georgia, basically it says if
there is a vacancy of more than 100 in the Federal House of
Representatives, then the Governor has to issue a special
election to occur within 49 days.
So they have actually addressed this, said, look--they want
to make sure that, you know, we have representation for the
State of Georgia, and that is triggered at 100, and it is only
for special election if a Georgian member of the House has
deceased as part of that or is incapacitated.
So if there is a way that we could get 50 States to enact a
similar type--you know, a bill and to make it law of the State,
then that would significantly reduce the potential time that we
have temporary.
Yes, sir.
Mr. Rogers. Mr. Loudermilk, the Continuity and
Representation Act that was passed in 2004 and 2005 is Federal
law and requires exactly what Georgia did, a special election
in 49 days if 100 or more Members are killed.
With due respect to the States and their power, it is
probably a very good idea for each State to enact their own
State law because of their power on elections. But there is a
Federal law that requires that.
Mr. Loudermilk. Okay. And that is good to know. I do agree
with you it should be done in every State because then that
prompts the State to be prepared, you know, in that event. And
so----
Yes, sir.
Mr. Baird. Two very quick points. One, this Commission and
prior commissions have addressed that very question of the
politicization of their appointments. The better strategy, from
a security and political perspective, is keep it quiet, keep it
secret so that there is not some currying of favor. If people
like me, they don't like A.B., but he would be my designated
successor, I don't want that baggage.
Mr. Loudermilk. Right.
Mr. Baird. And I don't want A.B. to be a target as well.
The second issue is, though--first of all, there is a real
question of could we have meaningful elections in 49 days.
Since that bill was passed, there have been very few special
elections conducted in that time frame. But the second point
is, a lot gets done in 49 days. After September 11th, this body
convened. I was there. We did--we modified FISA. We authorized
the use of force in Afghanistan and elsewhere. We did a lot of
stuff in 49 days.
So when you most need the Congress, you wouldn't have a
Congress for a time that is just a crucial period.
Mr. Loudermilk. Right. And I agree that as--when we do go
back and compare the founding of our Nation, they weren't under
the same timeline that we are now. You know, if there was going
to be an attack, you had weeks to prepare for the ships to sale
across the Atlantic, right? We are talking from months to
minutes now. And so I understand the need to do this.
And so, like I said, it is a very intriguing conversation
that we have to have. And so thank you, Mr. Chairman.
The Chairman. Thanks.
I have got Mr. Perlmutter and then Mr. Davis.
Mr. Perlmutter. This is a really important topic and one
that has all sorts of paths that he we could follow. But I am
with Mr. Baird and the Commission. I just don't think we can
have any lapse of time. Okay. In that instance then we have got
to have something that covers us in that 49-day period and then
have the elections and then, you know, move forward. But in
that momentary lapse, we have got problems, especially if it
has been an attack, especially if it has been, you know,
where--with things going on.
So I agree with Mr. Rogers on, you know, the quorum piece
of this thing, but I don't agree with him--I mean, I think the
Constitution is flexible enough for us to be able to do a
number of things. I am very concerned--I agree with you, too,
on how long it will take to do a constitutional amendment. We
have got to manage this in the time--I mean, right now.
So--and I think rules change, but it says--so Article I,
Section 5, 5.1: Each House shall be the judge of the election
returns and qualifications of its own Members and a majority of
each shall constitute a quorum to do business.
So there it sort of comes back to your question about what
is a quorum, but I think we--you get then to the next section,
5.2: Each House may determine the rules of its proceedings. So
where I think we have failed--or not failed, but I think we
have taken a policy that I don't think fulfills all that we
want is when we say, you know, let's look at the number of
people who--and Ms. Van Duyne wants to make a distinction--I
think she is right--between incapacitated and dead, so we have
got to think about that.
But I think we need to allow--so let's say there is 435 of
us, and 435 is not a sacred number. We have had different
numbers of the whole House since the beginning. Initially, each
of us represented about 30,000 people. Now we represent about
800,000 people, so that number is not sacred.
But if we start at 435 and let's say 400 people are killed,
now we have 30. What's the policy? Do we just let the executive
go forward, do its thing? Is Congress going to be able to
function, not function?
Mr. Rogers.
Mr. Rogers. Well, thank you, sir.
I do take a little exception with one of the other
witnesses here who said no constitutional scholars had found
for the provisional quorum rule. Walter Dellinger who argued
Raines v. Byrd, which is a case of constitutional standing
about the line-item veto and did many other cases, he testified
that the quorum rule would work under the Constitution. And the
point of view of the then Parliamentarian, Charlie Johnson, and
the Members I worked for and Mr. Dellinger was to have some
elected Members, even if it is a small number, is better than
any.
Mr. Perlmutter. I am actually agreeing with you. I just
don't think it goes far enough. It doesn't fulfill the policy
concerns that I am worried about.
So I think that the House had the right to change its
rules. I think the Supreme Court has to respect that, but I
don't think it really covers--it then lends us to these
problems of, okay, the majority just switches, you know, who is
the Speaker, all that kind of stuff. And I don't think it is
helpful when you get down into that nitty-gritty piece of this
thing.
Now, God forbid any of this stuff happened to us. Okay. But
I think--so I am not disagreeing specifically with the rule,
but I don't think the policy that ultimately comes from it is
what I want to see. I want us to be able to cover the losses as
quickly as possible in a way that does the least disruption to
the makeup of the House, and then provide for the elections,
which you are absolutely right, that would then take place 50
or 100 days, or some appropriate amount of time thereafter.
And maybe we make sure that whoever is the designated
survivor of the Member--and this may be in your--in the
amendment that you all are proposing--can't run for election,
you know, and just cut that out, just deal with it, you know,
for that momentary period.
So I just think there is enough flexibility for us to do a
rule, and you did one. It didn't go as far as I would like to
see it go.
Mr. Rogers. If I could just comment on that. I totally
agree with you. I think that the House Rules Committee and the
folks on this Select Committee and others should look at all of
those rules and continuity procedures. We did what we could in
the time, but then, of course, other issues came along and
there has been some work over time. But, yeah, it is a very
important issue, sir.
Mr. Perlmutter. The last thing I would say, because I went
with the everybody--is--killed scenario, there is the question
of incapacitated comes up and the definition of incapacitated.
Is it a coma? Is it--I don't know what it is. That one still
has me a little bit troubled.
Mr. Baird, do you have a thought on that?
Mr. Baird. Well, the incapacity issue has been wrestled
with, as you know, but it is not--I am a neuropsychologist by
trade. I have dealt with a lot of capacity----
Mr. Perlmutter. I can't--I am not sure if your mic is----
Mr. Baird. The light seems to be on.
Mr. Perlmutter. Maybe it is just yours is a voice I can't
hear.
Mr. Baird. I will bring it a little closer. Thank you. Is
that better?
Mr. Perlmutter. There you go.
Mr. Baird. Thank you.
The incapacity issue is not unique, and people have
wrestled with incapacity for a long time. The easiest and most
eloquent solution is simply if you say you have got capacity,
you have got capacity. Okay. So, in other words, somebody is
not going to say, I never liked Baird anyway. He's crazy, which
is a given. But they can't remove my ability to represent my
constituents that way.
So if you can declare you have capacity, you should be
acknowledged that. But if you can't declare that, then there
should be a process with medical professionals and legal
professionals to decide it. But as soon as you then can declare
it, you get it back if you are ruled without capacity.
Mr. Perlmutter. The last thing I am going to say is for Mr.
Bishop, because we were on the field at Gallaudet when you guys
were under that attack, and we didn't have any police. We were
all huddled in the dugout, you know, wondering what the heck
was going on. And so, the very same things that you were--you
know, you guys were under an attack. We weren't, but we were
wondering if one was coming for us.
And so, you know, we have all--and then, obviously, we have
January 6. So, you know, this isn't just hypothetical anymore.
Mr. Baird. Mr. Perlmutter, if I could address that real
quickly, I'll be very brief on this.
One of the things we have not addressed, but I think is
real important to recognize, in our loyalty to elections, which
we all believe are important, essential, we create a condition
in which without elections, people can alter the makeup of the
House and Senate, and that may well be an incentive to do so.
The reality is had 20 Members of the Republican conference
been killed that day when Mike and his colleagues narrowly
escaped that fate, the balance of power in the House of
Representatives would have changed.
In the United States Senate with an evenly divided--a dead-
even divided majority, or minority in the Senate, one
assassination, non-electoral process, can change the balance of
power in the Senate, and that affects the Supreme Court for a
lifetime.
So if we don't find some mechanism to disincentivize non-
electoral interventions which could be by foreign terrorists or
domestic, we create an incentive for mayhem, and we undermine
the very principle of elections which we are saying is so
sacrosanct, because through non-elective means, I could change
the balance of power in the House and Senate, and that is
dangerous.
The Chairman. I think Mr. Lewis wanted to chime in
virtually, and then I have got Mr. Davis.
Mr. Lewis. As I see this, look, you guys are the
policymakers on this, and we are sort of on the end of we will
deal with whatever policy you create. But from the discussion
that I am hearing here, it seems to me we need to separate two
things, because it is not a question of election versus
appointment or what have you. It is a question of what do we do
for the emergency period before any election is possible? And I
think that is what many of you are focusing in on.
But it is not--in my mind, it is not a question of either/
or. It is a question of solve the first problem first, which is
the emergency situation.
The second problem of how do we do an election and when do
we do an election then follows that. And remember this: After
9/11, this country was almost of one mind. It was unreal how
our opinions about what things were changed and our
divisiveness went away for a period of time. It didn't last
forever. But for a period of time, Americans were pretty much
of a single mind: We are going to do what we need to do to make
this country okay.
And I think in any future disaster, you are going to see a
similar reaction for a while.
The Chairman. Mr. Davis.
Mr. Davis. Thank you, Mr. Chair. Great to hear from you.
I don't know if anybody else noted, but my good friend, Mr.
Perlmutter, used the word ``lastly'' three times, so don't--
lastly. I would like to begin my questions with Mr. Bishop.
Mr. Bishop, you don't look any better on video than you did
the last time I saw you in person.
Mr. Bishop. I can't--I knew I could just expect that from
you. I will just not say anything out of respect.
Mr. Davis. Well, hey, you are a changed man if you have got
respect for me, my friend.
Hey, it is great to see you. And, you know, we were
together that morning on that baseball field, and you and I
both share that probably as our most terrifying experience that
we ever had in our lifetimes together. We ended up at the same
spot at the end of the shooting, and we will forever have that
bond together of experiencing that day.
And my question was going to be to you, because I didn't
remember our margin of the majority back then, but Congressman
Baird just mentioned that if it worked out differently, if
David Bailey and Crystal Griner weren't there, it could have
changed the balance of power.
I really appreciate the job that all of you are doing in
putting forth proposals, and I agree that this is something
that needs to be debated, but I am conflicted just based on the
discussion and the testimony that I have heard here today as to
what that solution is.
Mike, you were with me that day. You are somebody who I
consider a very close friend. I was not here for your opening
testimony, so if you mentioned this earlier, I apologize. But
what do you think is the best thing that we ought to be
considering today? Because if it is the constitutional
amendment, I mean, I have got a lot of other great
constitutional amendments that I support, but they haven't gone
anywhere in decades.
So if that is your number one choice, how realistic are we
to actually be able to do something?
Mr. Bishop. Well, that is a better question for you and
your colleagues as to whether or not you are in a good position
to do anything and how quickly you can do it, but I guess my
point being here and the point of the Commission in producing
the recommendation and presenting it to Congress is that if not
this, what? We all know that these issues exist. We all know of
the imminent threats to our Constitution, our imminent threats
to our institutions. And, you know, I think you have to take
aggressive, quick action to put in place a mechanism.
And I, unfortunately, don't think it is our luxury to be
able to look at the amendment process to the Constitution and
say we don't support it because it is going to take too long.
We just don't have that luxury. We have got to put this on the
track and start it down the path as quickly as possible so that
we--you know, we have, at some point in time, a solution in
place because we are sitting ducks, to use a very rudimentary
expression.
We have done nothing, and we need to be--as was said
earlier, we need to be prospective in our approach and not
retrospective because what happened to the Republican
delegation that day, Barry Loudermilk was just there as well--I
don't know if he is still in the hearing room. He was there as
well, and I think we can all agree if it can happen to us, it
can happen at any time.
And we--former Congressman Baird mentioned that we were
also on that train that crashed. Now, I don't know, maybe we
are bad luck.
Mr. Davis. Yes. Yes, you are.
Mr. Bishop. Yes. You were there too.
My point is that it can happen, and you just don't know
when it is going to happen. It can be a planned attack. It can
be absolutely just a tragedy occurrence, but we are--instead of
taking forward action, we are frozen in our tracks because we
are talking about how long it is going to take.
So the path--the journey of 1,000 miles begins with one
step.
Mr. Davis. I appreciate you bringing this up as a possible
solution.
As the chair--as the ranking member of House
Administration, my concern is how--is election administration.
We have had provisions in place that were implemented before
most of us got to Congress that provide for an election within
49 days, right?
The Chairman. 49 days unless there is a previously
scheduled election within 75 days, and then it goes to the 75.
Mr. Davis. So election administration. Donna, great to see
you again.
You mentioned mail-in ballots, you know, States like Oregon
put forth. In a time of disaster and a time of war and a time
of attack, I don't necessarily trust the Post Office is going
to get those ballots out as effectively as they do in a time of
peace.
I would argue States like Florida probably have a really
good local election administrative process that could work, and
I guess my goal, in the short term, is we talk about the time
it may take to implement any agreed-to solution that we may
have, is how do we ensure that those elections can go off
without a hitch? Why aren't we replanning election
administration as part of this issue too, as part of this
discussion? What do we need to have in place through the
Election Assistance Commission, through HAVA investments in our
States to be able to be ready for any possible short-term
election process?
I mean, Alaska is going to go through an election process
for a special election for our friend and former colleague, Don
Young. And I have been to Alaska, and let me tell you, the
election administration processes in Alaska are a lot different
than any other State I see represented around this table today.
So planning for that election process, is that something
you have thought of, Donna?
Ms. Shalala. Obviously, that is a key part of this. All we
are trying to do is preserve the status quo. This is the most
conservative approach you can have. What we are interested in
is protecting the balance of power, covering the losses with
the least disruption as quickly as possible. Those are the
principles that we are trying to follow, and to do that, we
need an election process that is quicker and fairer and
perceived as fairer. But if we don't do that, we end up with
small quorums without representation across the country.
So that is, obviously, a critical part. They need to do
continuity of government planning as well, and Congress needs
to look at the resources that are needed to keep--to get that--
really to take advantage of technology and of other things. And
I am not arguing particularly for mail-in ballots or anything
else.
Mr. Davis. Right. No, I understand that.
Ms. Shalala. I am saying for the period of time. And all of
us want this to be temporary so that we have representation,
and we can continue the government, but we also believe in
tighter elections.
Mr. Davis. I am going to make some comments lastly. I
promise you, this will be the last time I use the word
``lastly'' in this hearing.
I think we all have the same goal. We want something in
place in case of that disaster. What it is I think should be a
layered approach that this committee should look at, that would
include election administration, would include long-term
whatever--whatever was decided upon the best process for
continuity.
But I think what makes this House special is that we don't
have anyone appointed as our successors. We are the ones that
have special elections. The Senate, based upon each individual
State's laws, has a different process. So we have to take that
into consideration constitutionally. It is what our Forefathers
imagined.
Now, I do believe precedents have been set in a time of
war, in a time of disaster. The executive branch, they don't
need Congress now to begin a conflict of retribution and
retaliation. They certainly wouldn't need it if Congress was
incapacitated for a short term.
However, I am glad we are having this debate because I do
believe, based upon the numbers that Congressman Baird laid
out, that if there were vacancies in Illinois's 13th District,
in Georgia's district, and in Michigan's district, among
others, with a different outcome on June 14 of 2017, I believe
the constitutional crisis would have been that we would have
seen the minority in the House want to immediately become the
majority.
That is something that is--you know, I hadn't thought of
until this morning. But it is something that, again, we have to
prepare for. I am glad everybody is here working on this issue.
I am glad we have got a great team on mod comm and the rest of
the committees of jurisdiction.
And I thank each and every one of you lastly.
The Chairman. All right. I have got Ms. Van Duyne and then
Ms. Scanlon.
Ms. Van Duyne. All right. And I hate following Rodney
because I could never be as short, sweet, or funny, funny as
you.
So I appreciate this conversation. I think I am in a unique
position being a freshmen, a freshmen who came in in the middle
of a pandemic, and a freshmen who came in not ever seeing
Congress as a Member, how it normally works.
You know, Ms. Shalala, you use the word ``temporary'' a
number of times. The definition of temporary, the definition of
incapacitation, and the definition of emergency I think have
been redefined over the last 2 years. I look at the word
``temporary'' and what we have done with our temporary response
to the pandemic, which I appreciate you bringing up, because it
is the first time that we have actually brought up the context
in which we are having this conversation, the use of proxy
voting, the use of remote meetings.
I have been here for almost 15 months. There are Members of
this body I have yet to meet. There are Members of this body
that do not have open offices for constituents to come into
because we are still in an emergency, we are still handling
this in a temporary fashion, and it has been over 2 years.
So I would ask what is the problem right here that we are
trying to solve? I think right now if it is in a pandemic
situation and it is temporary, these solutions that we are
discussing I think are way too broad, and have already shown an
opportunity to be completely misused.
I also start thinking about the history of our country,
where we came from, the pandemics that we have had, the natural
disasters that we have had, the wars that we have had at home
and abroad, and how we were able to come and do our job. We
were able to come and have conversations, meet in committees,
be right down the street and talk to one another, and how
difficult that has been in the last 2 years.
And yet, our Forefathers were able to get here without
such, you know, comforts as planes and, you know, phenomenal
car systems and highway systems. We were able to do that then.
And I understand that the threats upon this country and
upon this body have definitely changed, but I am also concerned
about the lack of transparency and having--you know, keeping in
secret who your Representative is going to be to me is
problematic. I think when we pick one person to be our
replacement, you know, the fact that we have got a 50 percent
divorce rate shows that sometimes the person that we pick isn't
exactly the person that we think they are going to be.
And I understand these are short term, but, again, short
term and temporary have absolutely changed. We have redefined
that in the last 2 years.
Mr. Culvahouse, there is definitely still distrust. I live
in the State of Texas, and, you know, we have a saying right
now because we see so many different transfers coming from one
particular State, Don't California my Texas. That is still
happening today. We have not been able to move beyond that.
But I would bring to the attention of this committee that
we are looking at a number of different recommendations from
the board; the first being a mass amount of casualties such
that we don't reach a quorum. And I think there are a number of
ways that we could, in a temporary position, be able to solve
that. And I understand 49 days is the issue, right? I mean, is
that what this board is saying? Because this is what all the
temporary--and temporary is being defined as 49 days or, in the
case that you have got another election already scheduled for
75 days less, then it would be that. Is that the issue we are
having is the 49 days is why we are here today?
Mr. Culvahouse. I will go first. No, I don't think so
because, I mean, 49 days is a long time in a crisis, right? As
Brian talked about all of the things we are doing in the
aftermath of 9/11, let's imagine a scenario: You have a nuclear
attack, and you have an acting President who may not even be a
Cabinet member, who may not even be a Cabinet member, and you
have a rump group of--and you have a fewer than--you have, you
know, 100 Members of the House surviving, and you have an
acting President who wants to surrender the Navy to the
Chinese. I am really doing a Tom Clancy kind of thing.
You would expect and hope that the House and the Senate
would impeach that President, but that President--and I am
doing a lawyer's unimaginable horribles thing, Congresswoman.
But having been a White House counsel, that acting President's
White House counsel would say there is no House, There is no
House. It doesn't have a majority.
Ms. Van Duyne. And to your point----
Mr. Culvahouse. And you may not even have a Supreme Court.
And so, it is--I think time is of the essence, and that is
why--I don't think--our Commission would suggest there should
not be any interregnum where there is not a functioning House
of Representatives. We believe there should always be a
functioning House of Representatives and a functioning Senate.
Ms. Van Duyne. Let me ask, Mr. Rogers, I know that you also
had your----
Ms. Shalala. Yeah, let me just add onto that.
We are distinguishing between a pandemic where people are
still alive, and if there is a problem with proxy voting, I
happen to think when I was here that there was a problem with
the proxy voting. We tested it out. We clearly needed to
tighten up on that. But there is a distinction between a
pandemic and when Members of Congress are actually dead, and
their areas don't have representation. That is where we are
recommending temporary until there are elections.
Ms. Van Duyne. Okay. Because I am looking at recommendation
2 that says: Amend the Constitution to authorize that the House
and the Senate shall each have the power to provide for
emergency procedures, whereby the bodies would allow remote
forms of attendance and participation in the businesses of
either the House or Congress subject to the restrictions that,
and it gives a number.
So basically I am reading this--and maybe I am
misunderstanding, but I am reading this to say we are going to
have proxy voting and Zoom meetings constitutionally available
at all times.
Mr. Baird. That is not the intent.
Ms. Van Duyne. Okay.
Mr. Baird. The issue is, imagine the House and Senate have
adjourned for August recess. You are back in your district.
Vladimir Putin says, I am fed up with how things are going in
Ukraine. And if you guys intervene in any further way, if you
don't stop all arm shipments, I will nuke the Capitol. It might
be----
Ms. Van Duyne. That is one scenario, but I am also reading
into it saying that you are, you know, established by being
physically unable. I would argue that there were a number of
Members in this body that have said that they are physically
unable to be here. And we are allowing each Member to define
whether or not, for them, they are able to be here or not,
whether or not they consider themselves temporarily
incapacitated and immediately can come back when they want.
Mr. Baird. With respect, Congresswoman, that is not in the
proposal. What is in the proposal is that there may--what we
don't want to do is say that you must be physically present in
order to be deemed to have capacity because there may be
situations where we cannot convene in person. And we need to
have mechanisms, i.e. potentially remote voting to deal with
that, because there may be situations where it is not allowed.
Capacity means your rational ability to make decisions.
That is what capacity in the legal context means. I mean, that
was my background was neuropsychology. That is what that
capacity means. But if I am laid up because I am having a baby
or because I have got cancer and I am getting treatment, I am
not incapacitated under any stretch of the law, and my
constituents should not lose the representation.
Let me just take it to Texas for just a second.
Imagine that a flight of the Texas delegation is going back
home to Texas, and tragedy strikes, or there is a meeting of
the Texas--Republican or Democratic parties, and somebody takes
that out. You could lose the representation of the great State
of Texas in the House of Representatives for a protracted
period of time.
What we are trying to say is we want to protect Texans'
right to have representation in the Congress. That is what we
are saying, as Secretary Shalala was pointing out.
Ms. Van Duyne. Okay. So I am looking at the Commission's
report, and maybe I would just ask that you look at
recommendation 2, because I just read directly from it. So I am
not making the words up. But, I mean, when I read things like
physically unable, it does not say mentally incapacitated. It
does not say lacks the mental capacity. It says physically
unable.
It says that, you know, modes of voting and participation
must be open to Members, meaning it is their choice, correct?
Mr. Baird. Well, the point is that they have an opportunity
to vote if they are not able to be here in person. That could
be because it is not safe to do so. It could be because----
Ms. Van Duyne. Which I would argue could be extended to
include what we have seen over the last 2 years where some
people say it is not safe to be here.
Mr. Baird. Well, with respect, Congresswoman. I understand,
I am not a fan of proxy voting myself. I would prefer direct
remote voting, and there is technologies in countries that do
it. We had extensive testimony by David Petraeus, former head
of the CIA, former general and commanding in Iraq and
Afghanistan. He managed those wars remotely and gave excellent
testimony in a remote hearing we held.
It is plausible to do that, but the key issue here is if
you don't provide some mechanism for that to happen in times of
crisis--and we can argue about the day-to-day vicissitudes of
that. If you don't provide that, you are essentially
potentially abdicating the Article I, Article I branch
responsibilities and authorities. We think that is a mistake.
Ms. Van Duyne. And I think that is the issue that I am
having a hard time describing--a hard time on coming to terms
with because I think we are on a slippery slope. I think if
your--the doomsday scenarios that you are bringing up, I think
are very valid, and I think those are ones that we need to
consider moving forward.
My concern is that the recommendations, as I read them, and
as I have seen put into play the last 2 years, it is a slippery
slope that we are going down, what necessitates these
procedures coming in, what necessities an emergency, what is
defined, you know, by temporary?
And, Mr. Rogers, I know that you have comments as well.
Mr. Rogers. Thank you.
I was just going to say you really went at something that
the Members of Congress looked at back 17 years ago and 18
years ago when I was working on these issues, the balance
between expediency and legitimacy. And those Members came out
and the House majorities ended up voting on legitimacy over
expediency.
And that really kind of goes to the foundational part of
the government. Do you want to have people come in that are
selected by the Members themselves without any voting, without
any imprimatur of the states, without any imprimatur of the
people, the American people themselves to populate the people's
House for 49 days, or whatever it is, but taking all those
great actions that the gentleman at my left talked about would
have to happen in 49 days? That was the concern, because it was
certainly talked about. The constitutional amendment was back
on the table back then, as it is now, but the Members decided,
even though it maybe creates a situation, we have got to go
with legitimacy because ultimately, we are talking about the
people having faith in what's happening.
Thank you.
Mr. Baird. But the definition of legitimacy has been
defined that somehow, five Member survivors are more legitimate
than 435 temporary replacements chosen by the people who were
last elected by the voters.
I don't possibly see how a micro quorum with lack of
representation from many States and many districts has more
legitimacy than a temporary appointment until such time as
special elections can be held. I don't see how that it is more
legitimate.
Mr. Rogers. And if I could just answer that. The
Constitution says that the Members be chosen by the people. It
doesn't say that they will be chosen by their predecessors.
So, yes, you could have a micro quorum for a short period
of time. Some of the testimony and talks that we had at the
time suggested that people probably wouldn't be incapacitated
for that long of a period of time; the idea that most of the
things that incapacitate you either kill you or you get better
relatively quickly.
The House rules, as Mr. Timmons was asking about earlier,
if you die, you drop out of the quorum. It has been the rule
now. And so, when people are concerned about the provisional
quorum, perhaps they should be concerned about the House rule
that when a person dies or resigns or--death, resignation,
expulsion, disqualification, removal, or swearing, meaning
swearing in, the whole Member of the House should be adjusted
accordingly, which is clause 6 of--clause 5(d) of Rule XX. I
say clause 6. The (d) and the 6 got juxtaposed in my head.
I think it is more legitimate to look at where the House
has been. It has been there for a long time. This precedent,
now codified, goes back to Deshler's precedence in chapter IX.
So for a long time, when there has been a resignation or a
death, the whole Member of the House adjusts and the quorum--
and you guys see that. When you have had someone who has, you
know, resigned or otherwise, you may not notice it, but the
whole House number does change, and the quorum does actually
change.
Ms. Shalala. But the problem we are talking about is that
that is for incremental Members--individual Members that may
die or be incapacitated. What happens if a much larger number,
and you end up with 10 Members of the House of one party? That
is what our report speaks to.
Mr. Rogers. And if I might, so we asked that question of
Walter Dellenger, who--his take really resonated with the
Members that ended up voting for the quorum rule, was, it is
better to have some House than no House at all, that has been
elected by the people.
Mr. Culvahouse. Walter Dellenger was a law partner of mine,
a friend of mine. I recruited him to the firm. I have great
respect for him.
What we were talking about here, and with all respect to
precedent and what--we are recommending a constitutional
amendment. If that amendment is passed, by definition, then it
is constitutional. By definition, it is constitutional.
And the reason we are recommending constitutional amendment
is, as my colleague said, we didn't come to that. I am a
conservative. I didn't--you know, I started out late. I am not
in the business of recommending amendments to the Constitution,
as our predecessor commission did.
But all of this came around to the fact that we have got a
problem, and the problem is a majority of the whole House is a
quorum. And in a nuclear catastrophe, the most obvious, but
others--anthrax, whatever, chemical, dirty bomb--you could have
a nonfunctioning House at a time when the Nation most needs--
most needs a functioning House.
Congresswoman, the proxy voting, whatever, it really goes
to facilitating a functioning House in a catastrophic
circumstance. And we just think that if you are going to amend
the Constitution, it would be nice to make it clear that the
House has the rules, in emergency circumstances, or has the
authority to authorize something other than requiring people to
show up.
But our preference is people assemble in Washington. Our
preference is they--our preference is that these temporary
appointees be temporary.
The Chairman. Followup from Mr. Timmons and then Ms.
Scanlon.
Ms. Scanlon. Thank you very much.
Mr. Timmons. Mr. Rogers, the unlikely situation of everyone
being present at the State of the Union, all 435 Members,
everybody dies, what happens?
Mr. Rogers. Well, anecdotally, without knowing for sure,
but when I was working for the minority leader and Speaker
Boehner when he was Speaker, there were Members who were asked
not to attend. And one of those Members told me he was asked to
not attend--I don't know if that is an official policy or not.
That is beyond the ambit of my knowledge. And certainly the
designated survivor in the line of succession, and I believe
sometimes you have Supreme Court justices who don't come for
whatever reason.
So it is possible you could have a very thin amount of
legitimately elected or confirmed people to act. In the absence
of that, there is the idea I was mentioning earlier about
continuity officers that are chosen as officers rather than
Members temporarily, or you would have to do something else
like the constitutional amendment.
The Chairman. All right. Ms. Scanlon.
Ms. Scanlon. Thank you. Thank you very much, Mr. Kilmer for
having this important and I think long overdue hearing.
I am heartened by the fact that we do seem to have
widespread agreement about some things that are not without
controversy. One is that Congress should continue. The second
is that we should have elected representatives in it and
running the government.
But, you know, in the last 20 years and in the last 4 or 5
years, certainly we have seen physical attacks on substantial
numbers of Members of Congress, whether it was 9/11, whether it
was the June 17 attack on the baseball team, baseball field, or
January 6th, any which could have either decimated Congress or
changed--significantly changed the balance of power. So
physical attack is one thing we need to be concerned with.
Plague, and we certainly have been dealing with one of
those. And, you know, as a member of the Rules Committee, and
while I believe firmly that the Rules Committee is all
powerful, as I am sure our former member, Ms. Shalala, does, I
mean, there were challenges to trying to address an ongoing
pandemic when we did not have vaccines yet and how we were
going to keep Members safe when we had a change of Congress,
and the rules that had permitted certain protective measures
didn't exist anymore because it was a new Congress. So having
something that can bridge Congresses and recess periods and
that kind of thing seems more important than ever.
And then there is the cyber or other forms of attack. I
mean, we have talked a little bit about, you know, a nuclear
bomb taking out D.C. But what about taking down the air traffic
control system? I mean, then we end up with a system where
people can't gather or at least not for a significant period of
time.
So all of these things, I think, are things we have to be
concerned about. And I appreciate your trying to grapple with
the constitutional, electoral, and other issues that we are
dealing with here.
Mr. Lewis, I am so appreciative of the work that our
election officials do across the country, across the political
spectrum, and it is so important. I just wanted to quickly
address a couple election administration issues.
You mentioned the paper that is used for ballots--paper
ballots, that that could be a possible, sounds like a supply
chain issue for quick elections. Was that what you were
suggesting? That was right as I came in.
Mr. Lewis. Well, ballot stock is a very specific stock that
we order from printers, and we order it well in advance of a
scheduled election, so that we have to rely on the vendors to
get with the manufacturers to produce the correct number of
ballot stock that we can use in any given election. Obviously,
in an emergency situation, we may not have that luxury and
probably wouldn't have that luxury.
The reason we go to such extraordinary lengths is to
control so that we know that somebody didn't just slip in a
ballot somewhere. By using ballot stock, we number it, we
account for it, we count it, we know how many we received, how
many we printed, how many were voted, how many were spoiled,
and how many we have left. And that assures us of, then, that
we didn't have manipulation of the outcome.
In an emergency, we may not be able to make any of that
work. And so if we are going to have to vote on, for instance,
plain paper, then we have got special considerations. We got to
figure out how do we do a work around to make sure that the
numbers that come up are the numbers that really are entitled
to come up.
Ms. Scanlon. And that certainly goes to a preplanning kind
of consideration that I think Secretary Shalala was mentioning,
that that is something that if we know what we have to plan
for, then we can plan for it.
I appreciate your talking about the integrity of the ballot
stock. It has certainly been on people's minds in Pennsylvania
and, you know, it has been useful to explain to people that
Vladimir Putin can't just run off copies of ballots at FedEx or
Kinko's and slip them in there without someone noticing. And in
Pennsylvania in particular, we have 67 different counties that
each order their own stock. So it is very, very difficult to
mess with a Pennsylvania election.
Just one other question about the resiliency and what we
might have to do with election administration in an emergency
election. I think, I am sorry Mr. Davis had to leave, but he
talked about not being sure that mail-in ballots would work
because maybe the post office wouldn't be working.
But our State election officials have experience now with
drop boxes and other forms of allowing people to submit their
ballots other than the post office or the polling place, don't
they?
Mr. Lewis. Well, yes, assuming that--I think even in my
testimony I mentioned, you know, if the post office doesn't
work, if there is something that prevents them from working, we
obviously are not then going to have mail as an option. So how
do you come around and work around that?
If mail is an option, it then becomes an option that we can
use and simplify the election for some folks. Admittedly, we
still have to recognize most of the country does not have
extensive experience in mail balloting, but we can always make
that work.
This is--look, elections officials are incredibly
resilient. They are going to figure out whatever we got to do
to make something happen. The problem is whether or not that
then has legitimacy in terms of the way the public interprets
what we did. And that certainly is where we are at this point.
Ms. Scanlon. Sure. And having systems--known systems in
place that people understand and don't appear to be under
attack after the fact seems very important.
Mr. Lewis. Just let me add one thing there. The problem for
us as elections administrators all around the country is maybe
25 percent of the jurisdictions are as well funded as any other
part of government, but that means 75 percent aren't. And so
having resources to buy spares that you may use at some point
in the next 20 years is not something that our jurisdictions
are going to have enough money to do. And so it is one of those
where we sort of have to say, you have got an emergency, we
have to have emergency reaction, and that may or may not be
possible.
Ms. Scanlon. Okay. Just turning to the similar issue of the
legitimacy and such in assuring that any temporary replacement
Members of the House have that legitimacy, much conversation.
Can we elaborate a little bit, maybe starting with my
colleague, Rep. Shalala, on sort of the criteria for who might
be on these designated replacement lists, and has consideration
been given--I think we talked about former Members or people
who are already elected officials to address this issue of
public buy--in.
Ms. Shalala. No. We didn't--while we had a discussion about
what they would look like, we didn't add that amount of detail.
Just, we trusted the Member of Congress to designate a list,
perhaps, of people they thought were qualified, assuming in
their own party, so that we wouldn't change the political mix
maybe.
Ms. Scanlon. Anyone else want to comment there on--yeah.
Mr. Culvahouse. Yeah. We talked--I will go to Brian
quickly. I mean, we talked about such things as making it clear
that they would be disqualified for standing for election. So,
I mean, the confidence of the electorate and the government
that there is--you know, that this isn't a way to, you know, to
leave a legacy by will for your successor, to mandate your
successor. We went back and forth over whether it should be
public or private. So we just didn't--we left it silent with
the notion that, you know, that the Congress and the drafters
of the amendment are the best people to do it.
Brian?
Mr. Baird. Congresswoman, a couple quick points. One,
unfortunately, I don't think there is agreement on this in the
testimony today or even some of your colleagues that we do
believe in continuity of the Congress. Because if we don't have
a Congress for 49 days--and by the way, I should say,
parenthetically, since that law was passed, there have been
very, very few elections under normal circumstances in 49 days,
let alone a national crisis.
And we would like to believe our enemies will play by the
rule. They will only attack Washington, D.C. and only while we
are--no, our enemies are going to attack us in multiple
locations, rendering 49 days improbable and impractical. So
there may not be agreement that we all favor continuity of the
Congress.
One other really quick note, Mr. Chair, because I really
want it to get into the record. The gentlelady from Texas who
left, and I am sorry she did--Texas has on its books a law
providing for temporary replacement from members of the
designated members from their legislature. So Texas has in
place already the very kind of mechanism that this commission
has recommended. And so I would urge that the Texas government
somehow needs to look at that and say, well, it works for us
actually pretty well at the State.
The Chairman. I really appreciate--and I appreciate the
final point, because I think your report said the average
special election is, on average, about 150 days, so----
Go ahead, Mr. Rogers, and then we got to wrap. I am
unfortunately going to have to set the land speed record to
Rayburn.
Mr. Rogers. Thank you. I will be quick.
First of all, during the look at the special elections law
at that time, 10 States had less than or approximately 45 days.
And during the consideration, the minority wished to have 75
days in the first Congress, which was voted down. And then 60
days was voted down the next time.
And I would respectfully disagree with Mr. Baird. I think
during a national crisis, we will be able to focus quite a bit
more because it will be the most important thing going on, and
we will get it done in much less time.
Thank you.
The Chairman. I want to thank all of our witnesses for
their testimony today. I would like to thank our committee
members, as well as Representatives Scanlon and Loudermilk who
joined us today. I want to thank our committee staff for
putting together, I think, a terrific hearing.
You get a sense of why we decided not to limit members to
5-minute questions because this is complicated stuff. And I
think it is actually worthwhile for members to be able to pull
on some of these threads.
I also want to thank our stenographers for taking record of
the events of the day.
Without objection, all members will have 5 legislative days
within which to submit additional written questions for the
witnesses to the chair which will be forwarded to the witnesses
for their response. I ask our witnesses to please respond as
promptly as you are able.
Without objection, all members will have 5 legislative days
within which to submit extraneous materials to the chair for
inclusion into the record.
Again, I want to thank our terrific witnesses. I can't help
but notice Norm Ornstein in the crowd. Seems like this would
make for a very good Oxford-style debate, by the way. I know
that you are the father of that idea.
I think this is a really important conversation, and I
appreciate each of you being a part of it. And I am sorry that
I am going to sprint out of the room and not be able to thank
you personally, but please accept my gratitude.
And, with that, this hearing is adjourned. Thanks
everybody.
[Whereupon, at 11:15 a.m., the committee was adjourned.]
APPENDIX I
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APPENDIX II
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