Special Elections in Extraordinary Circumstances
Statement of John Cornyn Senator
Committee on House Administration
I want to congratulate Chairman Robert W. Ney, ranking member John B. Larson, and all of the members of the Committee on House Administration for holding this important hearing on the issue of continuity of Congress. And I thank you for the opportunity to submit these written remarks.
On Tuesday, September 9, I chaired the first in a series of hearings in the Senate on continuity issues. That hearing of the Senate Judiciary Committee examined serious weaknesses in our ability to ensure continuity of the Congress - the subject of your hearing this afternoon as well. Last week, on Tuesday, September 16, Senator Lott and I co-chaired a joint hearing of the Senate Judiciary Committee and the Senate Rules Committee to explore problems with the current Presidential succession law. Future hearings on the continuity of government are also planned.
I convened these hearings because I am deeply concerned that, two years after the terrorist attacks of September 11, 2001, Congress still has not taken the steps necessary to ensure that the vital institutions of our government - including Congress itself - will continue to operate on behalf of the American people should another attack occur. Two years is too long, and so I congratulate this committee for holding today's important hearing.
Two days after September 11, Congress approved legislation expediting benefits for public safety officers killed or injured in the line of duty that day. Three days after September 11, Congress appropriated $40 billion in emergency funds for recovery from and response to the attacks, as well as legislation authorizing the use of military force. A week later,
Congress approved additional legislation to stabilize and secure our economy and our airports, and to provide compensation for the victims of the September 11 attacks. And in subsequent weeks, Congress enacted several other bills and appropriations measures to bolster national security and upgrade our capabilities to combat terrorism.
Had the events of September 11 unfolded differently, however, none of this legislation might have been enacted in timely fashion. United Airlines Flight 93 was likely headed for the Capitol. But for a late departure and the ensuing heroism of the passengers onboard, Congress might have been destroyed.
Under our Constitution, Congress cannot act without a majority of its members present. Article I, section 5 of the Constitution expressly provides that "a Majority of each [House] shall constitute a Quorum to do Business." Our Constitution is explicit on this point, because our Founders believed it fundamental to our representative form of government.
As Alexander Hamilton explained in The Federalist No. 59, the Constitution empowers states to shut down Congress by refusing to send representatives. And in fact, during the first Congress, neither the House nor the Senate were able to operate for an entire month, because a majority of Representatives and Senators failed to appear for duty. Both chambers waited until "a quorum, consisting of a majority of the whole number, [was] present." See also United States v. Ballin, 144 U.S. 1, 7-8 (1892) (stating general principle of parliamentary law: "[A] majority of those present may act, provided those present constitute a majority of the whole number.... [A] major part of the whole is necessary to constitute a quorum, and a majority of the quorum may act.") (citing Dillon, Municipal Corporations 283 (4th. ed.) and Brown v. District of Columbia, 127 U.S. 579, 586 (1888)).
This vulnerability was deliberate. As one delegate to the 1787 Constitutional Convention in Philadelphia urged his colleagues, "[i]n this extended Country, embracing so great a diversity of interests, it would be dangerous to the distant parts to allow a small number of members of the two Houses to make laws." 2 Max Farrand, The Records of the Federal Convention of 1787, at 251-52 (1966) (statement of Col. Mason).
Congressional power exercised by just a handful of members is thus not only constitutionally dubious. It raises serious questions of democratic legitimacy as well. The Founders properly rejected the notion that a small body of members from one region of the nation might enact national legislation or confirm federal officials to govern the entire country.
This commitment to federalism and national representation has a cost, however. Under the Constitution's requirement of a majority for quorum, terrorists could shut Congress down, by killing or. incapacitating a sufficient number of Representatives or Senators.
(Of course, both Houses of Congress sometimes approve legislation without actually having a quorum present. Under the doctrine of presumptive quorum, the presence of a quorum is presumed unless a member suggests the absence of a quorum.
Accordingly, actions can be taken by unanimous consent or voice vote despite the actual absence of a quorum. If anyone suggests the absence of a quorum, however, the Constitution requires the presence of a majority of the entire body before action may be taken. In short, the doctrine of presumptive quorum is no cure for terrorist attack with respect to ensuring the continuity of Congress.)
Our ability to ensure continuity of Congress under the current Constitution is woefully limited. States have power to allow their governors to appoint Senators in cases of vacancies, and 48 states have elected to do so. But the Constitution provides no immediate mechanism for filling vacancies in the House, nor for redressing incapacities in either chamber.
Vacancies in the House can be filled only by special election. As expert witnesses testified during the September 9 hearing, special elections take months to conduct, for reasons of mechanical feasibility, democratic integrity, and the rights of military and other absentee voters.
What's more, incapacities cannot be addressed at all - and, although people often forget, this problem affects the Senate no less than the House. If 50 Senators were in the hospital and unable either to perform their duties or resign, they could not be replaced. The Senate could be unable to operate for up to two full election cycles - a four-year period.
The Continuity of Government Commission, a bipartisan panel of former congressional leaders and government officials across the political spectrum, has unanimously endorsed a constitutional amendrgent to provide for emergency interim appointments, in cases of catastrophic attack-, until special elections can be held. Under this approach, special elections would be held - but interim emergency appointees would be able to serve immediately, during the time it necessarily takes to conduct special elections.
Just as the 25th Amendment ensures continuity of the presidency, the proposed amendment would ensure continued congressional operations. Indeed, some members of Congress have already introduced their own constitutional amendment proposals, joined by a bipartisan coalition of more than 80 co-sponsors.
Alternatively, several distinguished Republican House members have introduced H.R. 2844, a statutory proposal to require expedited special elections in cases of emergency. Parties would have two weeks to nominate candidates, and the election would occur seven days later.
I am open to any proposal that gets the job done - that is, any proposal that ensures that Congress will be able to convene immediately in the wake of a major terrorist attack on the nation, in order to appropriate emergency funds and authorize government actions and authorities in response. And I certainly respect the sincere desires of House members to preserve, to the maximum extent possible, the tradition that every member of the House is elected.
I am concerned, however, that special elections alone - without constitutional provision for interim emergency appointees - will either take too long to conduct and thus fail to ensure adequate continuity of Congressional operations, or will sacrifice too many other important principles and traditions, such as meaningful democratic elections and voting rights, in the process. It is one thing to plan for an election that has been scheduled months or even years in advance, or to make small adjustments in the days and weeks preceding the regularly scheduled election. It is quite another thing, however, to conduct an entire election from a standing start, and in a dramatically shortened time frame.
A Congress that cannot operate denies all Americans meaningful democracy. A Congress based on expedited special elections that disenfranchise military and other absentee voters denies too many Americans the right to vote. Better to ensure full democracy through timely, meaningful special elections, and to ensure continued Congressional operations through other mechanisms.
At the hearing I chaired last week, experts testified that special elections take months to conduct. It takes time to qualify the candidates, hire poll workers, prepare voter rolls and voting machines, and reserve polling locations, as well as to verify election results and qualify the winners to take office.
I am also deeply concerned with testimony that such expedited elections would effectively disenfranchise military and other absentee voters. Americans who put their lives at stake to protect democracy against threats abroad have every right to participate in democracy at home. -More-
According to our witnesses, which include an expert in military voting rights, it would be impossible to send and receive absentee ballots to our troops overseas under such limited time constraints.
Giving voters and candidates just seven days to debate issues and examine qualifications also presents serious concerns of democratic integrity.
Remarkably, every letter we have received from state and local elections officials has expressed concerns about any 21-day expedited special elections regime. They have expressed concerns based on mechanical feasibility, democratic integrity, and preservation of the voting rights of military personnel and other absentee voters. Thus far, we have received letters from Geoff Connor, the Secretary of State of my home state of Texas, as well as letters from the states of Alaska, Delaware, Florida, Idaho, Indiana, Kentucky, Maryland, Minnesota, Missouri, Pennsylvania, North Carolina, South Carolina, South Dakota, Vermont, Washington, and Wisconsin.
One of those letters came from Mary Kiffmeyer, the Secretary of State of Minnesota and, I am informed, a witness at today's hearing. Her letter of September 8, 2003, is enormously instructive, and I am grateful to her for submitting it. It is worth quoting portions of that letter here:
[A] short time period such as 21 days means that a number of military and overseas voters will have a limited time period to apply for an absentee ballot, receive it, and then have it delivered to the polling place after it is voted.... Issues associated with polling place and poll worker availability may arise. The period for the voting public to become aware of the election and be informed about the candidates is reduced. Certainly in such disastrous circumstances, our country would be facing very unique circumstances and it might justify a unique way o[fl resolving the importance of continuity of government.
Another way of resolving this issue is through an appointment.... This is an option used for a US Senate vacancy, which your committee might consider.
Finally, even putting aside all of the problems of mechanical feasibility, democratic integrity, and voting rights, special expedited elections still would not be available to redress the problem of incapacities, as opposed to vacancies in office.
And once again, I hasten to point out that the problem of mass incapacities plagues the Senate just as it does the House.-
Again, congratulations on holding today's hearing, and thank you for the opportunity to submit written remarks for the
record. I hope that today's hearing of the Committee on House Administration - like the Senate Judiciary Committee hearing I chaired last week - is just the first step in a longer process in both Houses of Congress of ensuring that our more than 200-year experiment in self-government will never perish from this earth.
In an age of terrorism and a time of war, few things could be more important than ensuring that the United States government - the nation's most vital instrument of national security - is failsafe and foolproof, against even the most devious and destructive of terrorist plots. Nobody likes to plan for their demise, but failure to do so is foolish and dangerous. We must begin the process of sending the message to terrorists that there is nothing they can do to stop the American government from securing freedom here and around the globe. Two years is too long, and the time to plan for the unthinkable is now.