Sen. Rand Paul was blunt about what would have happened Wednesday morning when a gunman attacked a congressional softball practice: Without the coincidental presence of Majority Whip Steve Scalise—who was shot in the hip in the attack—there wouldn’t have been any Capitol Police presence, meaning no security to return fire and stop the shooter. “It would’ve been a massacre.” Even as it was, the gunman got off dozens of shots—perhaps as many as 50 or 60, witnesses told reporters.
Scalise, the third-ranking member of the House leadership team, remains in critical condition. But the incident brought new attention Wednesday to an uncomfortable fact that has dogged Capitol Hill since the attacks of Sept. 11, 2001: Congress, thanks to its own stubbornness, still doesn’t have a good mechanism to replace quickly members who have been injured or killed. And, if ever there were a mass slaughter of top members of Congress—a chemical or biological attack, or even a shooting incident that merely injured or incapacitated a large number of senators or representatives—business could come to a grinding halt and leave the House and Senate impotent for weeks or even months.
The stranger thing, though, is that America’s continuing inability to rebuild Congress after a catastrophic attack is, one might say, supposed to be a feature, not a bug. The men and women who have occupied the House leadership before Scalise have decided that they don’t want members to be easily replaced, even if preserving congressional traditions means that senators and representatives will be sidelined from post-disaster decision-making.
The loss or incapacity of even a small group of members would have a profound and immediate impact on democracy, thanks to procedures developed when Confederate members of Congress abandoned Washington during the Civil War. Today, the loss of life of a dozen or two members of Congress could drastically alter the majority totals necessary to pass tax cuts, the repeal of Obamacare, restrict civil liberties following an emergency or pass any other piece of legislation.
Congress has never had much interest in confronting its own mortality—during the Cold War, President Dwight Eisenhower effectively coaxed into existence the congressional doomsday bunker at the Greenbrier resort in West Virginia after legislative leaders dragged their feet—but the months after 9/11 raised new fears about just how unprepared Congress remained for any sort of widespread catastrophe involving its members.
Those fears were quickly underscored when Senate leaders like Patrick Leahy and Tom Daschle received deadly anthrax at their offices, forcing the closure of 19 Capitol Hill office buildings. The anthrax attacks raised a new scary possibility never contemplated during the Cold War: What if an attack incapacitated large numbers of senators and representatives without immediately killing them? From the 1940s to 1962, as it wrestled with the issue of presidential succession, Congress had also seen more than 30 different proposed bills and constitutional amendments about what to do in the case of a mass death of its membership—three of them had actually even been passed by large margins out of the Senate, but every bill had died untouched in the House, which stubbornly refused to contemplate its own mortality. Eventually, the issue had fallen from the legislative branch’s radar.
One of the stumbling blocks was that “continuity of Congress” was a misnomer. From the outside, the legislative branch might appear as a single entity housed in a single domed building. But the House and the Senate operate separately, each driven by and respectful of their own traditions and precedents. As James Madison had explained in setting up the legislative branch, the Founders’ goal had been to “divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit.” Neither body has any ability to force its governance principles on the other—all procedures were arrived at either independently or by negotiation and compromise.
That history explains why, when it comes to questions of continuity and succession, the two bodies have evolved rather different approaches. The Senate—which until the early 20th Century has a long tradition of appointed members rather than directly elected ones—had relatively clear constitutional policies about how appoint interim senators to fill a vacancy. The House, though, had no clear way to reconstitute itself quickly, nor have its leaders been inclined to compromise what they see as their body’s unique character in the name of continuity efforts. That’s precisely the way that House leaders want it to be: The House prides itself on the fact that every person who has ever set foot in the body has been duly elected by the people; its biennial elections keep it close to the will of the voters and make it a valuable check on the whims of the president and the Senate, whose longer terms allow them greater detachment from the populace.
In the wake of 9/11, though, a terrifying image haunted the discussion of congressional continuity: Had United Flight 93 taken off on time, instead of 41 minutes late, and the passengers hadn’t had time to learn of the other attacks and storm the cockpit, the plane might very well have successfully continued to Washington and hit the Capitol building at about the same time as American Airlines Flight 77 hit the Pentagon. Had it hit while both chambers were in session, as they were that morning, legislative business might have been forced to a halt by procedural problems deeper, in fact, than the catastrophic physical destruction wrought by the attack. “With hundreds dead and perhaps hundreds of others in burn units in hospitals, Congress would likely have been without a quorum, without a building, without the ability to function,” American Enterprise Institute scholar Norm Ornstein worried after 9/11.
In congressional testimony, Ornstein pointed out that since the Civil War, Congress had interpreted Article I of the Constitution as requiring a quorum of the majority of the members “duly chosen, sworn, and living” to conduct its business—that interpretation, as opposed to basing a quorum on the majority of the body’s total membership, was a procedural sleight of hand formulated as a response to the large numbers of senators and representatives who had left the body as the Confederate states seceded. The seats left vacant by the secessionists need not, House Speaker Galusha Grow had ruled, be counted toward the body’s quorum total.
Gathering a quorum of members chosen, sworn and living was a simple enough standard to meet if members were killed—thereby reducing the House’s total number—but it would pose its own post-catastrophe problems. As Ornstein pointed out, if 300 members of the House were killed in a natural disaster or terrorist attack, the body could conduct business with a majority—68 representatives—of just those remaining alive until special elections ultimately filled the vacancies. Certainly, whatever legislation such a small group could pass might, as Ornstein said, “tax its legitimacy” with the public. What if an attack wiped out the vast majority of the body? Would anyone want a subset of just a handful of representatives, perhaps just a dozen, score, or even a hundred, making sweeping decisions about declarations of war, new appropriations or the massive civil liberties curbs likely to be imposed following a large-scale attack? What if a massacre changed the partisan balance on the Hill? It’s too early to know the extent to which Wednesday’s shooter was motivated by partisan motives, but any sort of mass attack on one particular party could easily tip the balance of power, particularly in a closely divided body.
Even more troubling for democracy, though, are scenarios that include the loss of a large portion of Congress.
“Take, for example, an attack that kills all but 9 members of Congress,” Ornstein argued. “Five of those nine would constitute a quorum, and that tiny, unrepresentative group could pass legislation out of the House. More troubling is the intersection of the Presidential Succession Act with an attack on Congress. In the case of the death of the president and vice president, a nine-member House could then elect a new Speaker, who would become president of the United States for the remainder of the term.”
Yet in some ways, the problems of a small, skeleton Congress were simpler than the more frightful alternative raised by the anthrax attacks in the fall of 2001—at least it was clear a mass killing of congressional members would let the body continue legally functioning, albeit with questionable national legitimacy. Much more complicated were the problems raised by a scenario where large numbers of members were badly injured or sickened and unable to perform their congressional duties. If that happened, Congress might not technically be able to assemble a quorum sufficient to conduct business. Under normal circumstances, there were nearly always a handful of vacancies in Congress, due to deaths or resignations, and members who were absent for a long period of time due to injury or illness, but in a body of 435 representatives, those vacancies and absences were negligible.
A disaster that sickened or incapacitated large numbers of members would pose numerous problems; Congress only once in modern history had declared a seat “vacant” when the member was still living. In October 1980, Rep. Gladys Noon Spellman, a Maryland Democrat, suffered a heart attack while judging a Halloween contest and fell into a coma. After it became clear in the weeks and months ahead that she would never regain consciousness, Congress, with her family’s permission, nearly four months later passed a resolution in February 1981 declaring her seat vacant. It was a lengthy and specific procedure unlikely to be easily repeatable in the wake of a larger catastrophe or attack. And yet, as Ornstein argued, “The grim realities of the war on terrorism and the nature of possible chemical or biological attacks on Washington and Congress makes it perhaps more likely that Congress will have massive incapacitation than massive death.”
It’s not as simple as it might seem at first. While state governors can appoint interim senators, there was no similar mechanism for the House, where the Constitution decreed that legislators needed to be chosen by special elections. Many states have imposed legal waiting periods on those special elections—and some states barred them entirely if it was within 180 days of the scheduled end of the legislative session, meaning that an election-year attack could hobble Congress for the better part of a year without a functioning majority. As it was, when Ornstein and others crunched the numbers, they determined that it usually took the House an average of about 117 days to fill a vacancy under normal circumstances—fine for peacetime, but a nearly four-month eternity in a national crisis.
Absent a House able to assemble a quorum, the Senate would also be effectively shut down—and even the executive branch hobbled on key matters. As Ornstein has documented in his warnings, if the Capitol or Washington region was uninhabitable, the law required both houses to assent to reconvening Congress outside the capital, preventing even a fully functional Senate from conducting business like confirming presidential appointments or ratifying treaties with allies. Without the House, it turns out, it doesn’t matter how many senators are still alive—the Senate still can’t conduct business.
Moreover, if the sitting vice president had been a victim of the incident as well, a new No. 2 could not be confirmed absent a House quorum, since both bodies have to confirm such a position. No funds could be appropriated, either, since such legislation was required by the Constitution to start in the House.
The list of challenges went on and on—and neither the Constitution nor existing law provided clarity about how Congress could respond to a catastrophic attack. “I don’t think that I can overstate the importance of having a Congress in a time of crisis,” Ornstein argued. “A nation without a Congress is a nation under a form of martial law or trusting the president to do the right thing without any check.”
Rep. Brian Baird, who had many of Ornstein’s same fears as he had milled around Capitol Hill aimlessly amid the confusion of 9/11, joined Ornstein in calling for action. “Dealing with this is in no way an act of panic,” Baird said in October 2001. “It’s an act of courage. Honestly, I don’t think we’d be excused for not stepping up to the plate. We have a duty to hold up the Constitution.”
Baird proposed allowing governors to temporarily appoint members of Congress after a disaster, who would serve until special elections were held 90 days later. It sounded eminently reasonable, but Baird’s suggestion immediately ran into controversy on Capitol Hill. The idea of “appointed” representatives—even if only a temporary crutch to keep the nation functioning following a devastating disaster—was anathema to House leaders.
To study the issue and suggest solutions, two of the capital’s top think tanks—Ornstein’s American Enterprise Institute and the Brookings Institution—teamed up to host a new “Continuity of Government Commission” chaired by former White House Counsel Lloyd Cutler and former Senator Alan Simpson. Two years after 9/11, in 2003, its final report called for a new constitutional amendment to expedite special elections in the wake of an attack and to otherwise smooth the reestablishment of a devastated Congress. In the House, Speaker Dennis Hastert and Democratic Leader Nancy Pelosi created a special task force to explore continuity issues, charging them with exhausting every solution short of a constitutional amendment or temporary appointments. At a luncheon, Ornstein separately talked to Texas Sen. John Cornyn, who encouraged the Senate to explore the continuity questions.
One idea floated was that each member of Congress should designate his or her own list of successors in case of incapacitation—with those successors serving until either the next regular election or the member regained the ability to hold office. Several states, including Delaware and Texas, had passed similar bills during the 1950s and 1960s at the height of the Cold War to reconstitute their state legislatures following a nuclear attack. Two former House speakers, Thomas Foley and Newt Gingrich, endorsed that “expeditious path” to solving the congressional continuity issue and preserving the House’s directly elected “legitimacy.” Such successors would “embody the latest expression of the voters’ will in each congressional constituency.” As Foley and Gingrich wrote, “We consider it imperative that the House move now in the most direct way possible to meet the acknowledged threat.” The move, in effect, would force every senator and representative to create a political “living will,” outlining a clear path forward to reconstitute a functioning legislative branch.
Their proposal and protestations, though, rang a bit hollow—after all, the problem of congressional continuity hadn’t been “imperative” enough for either Foley or Gingrich to address during their own tenures as the House speakers.
Others suggested that it should be up to each governor to decide whether the majority of his or her state’s congressional delegation was incapacitated. At that moment, the governor would sign a proclamation and send it to the speaker of the House, the president or the chief justice of the U.S. Supreme Court—or, if they had been wiped out in an attack, the nation’s senior-most governor. If a majority of governors declared their members unable to serve, it would trigger the constitutional amendment allowing temporary appointments.
By July 2003, Congress faced enough public and internal pressure that it had to confront the idea of a catastrophe—but its response fell far short of the goal. Reps. James Sensenbrenner, David Dreier and Candice Miller introduced a bill requiring states to hold special elections within 21 days if the speaker declared that there were more than 100 vacancies. Ornstein publicly criticized the bill as unreasonable, pointing out how difficult the logistics would be to schedule and manage elections on such a tight timeframe, and partisan sniping quickly tied the bill up in knots. In total, eight different bills and proposed constitutional amendments were introduced to address the problem of “continuity of Congress,” but they all stalled. A more robust constitutional amendment allowing the temporary appointment of members in a crisis failed badly—so soundly defeated, in fact, that it was rejected by the widest margin of any amendment in the history of the House.
Every single proposal for congressional continuity was imperfect and troublesome in one aspect or another, supporters and academics acknowledged—each offered trade-offs between continuity, tradition, democratic representation and expediency. Nevertheless, since the beginning of “continuity of government” planning during the Cold War, officials had successfully made just these types of trade-offs in other areas with an eye toward preserving the ability of the government and the United States to function over a longer time horizon. Yet unlike in the executive branch, where a single president or agency director could settle a decision and issue a decree, the broad compromises required to pass a majority of the 435-member House and also the 100-member Senate left the legislative branch paralyzed.
“Instead of looking at this in the broadest sense, they looked at it from their own narrow parochial perspective and it was, ‘I’ll be damned if I’m going to let this son of a bitch pick my successor!”—pointing to his own governor at that particular point in time,” Ornstein recalled. “And I said, ‘One, you’ll be dead, so, you know, not to worry; and two, can’t you think of this in the larger context? And do you really think that governors that we have under a situation of utter catastrophe in the country would say, ‘What a great opportunity to take advantage for political leverage?’ It’s just not going to happen. But it’s another part of human nature.”
Two years later, Speaker Dennis Hastert finally attached “continuity of Congress” legislation to an existing appropriations bill—a parliamentary move frowned upon in normal practice—and forced the Senate to accept it without amendment. The bill, which ultimately became law and remains in force today, didn’t allow for temporary appointments—nor did it include provisions for designated successors. Instead, it required states to hold “expedited” special elections within 49 days of a declaration by the speaker of the House that more than 100 congressional seats were vacant. Given that in peacetime, it took an average of 117 days to hold a new special election, the result of the new continuity legislation was that the best Congress could offer—after years of concern, work and much debate—was effectively cutting roughly in half the length of time that the legislative branch would sit on the sidelines after a devastating attack, natural disaster, or other catastrophe in Washington.
Even today, Congress must continue to pass anew each session the rules that attempt to speed up members’ replacement—but there remains no permanent plan to ensure that Congress is able to reconstitute itself following an emergency.
Considering the wealth of decisions, executive orders and precedents that would be set and executed in the first 49 days after a devastating attack—decisions that would likely shape the future of the nation in myriad ways big and small—Congress has effectively abdicated its responsibility to participate in the nation’s governance during the worst-case scenarios that could befall our country in the future.