Constitutional Amendment Regarding Appointment of Individuals to Fill acancies in the House of Representatives
CONSTITUTIONAL AMENDMENT REGARDING APPOINTMENT OF INDIVIDUALS TO FILL VACANCIES IN HOUSE OF REPRESENTATIVES -- (House of Representatives - June 02, 2004)
Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 657, I call up the joint resolution (H.J. Res. 83) proposing an amendment to the Constitution of the United States regarding the appointment of individuals to fill vacancies in the House of Representatives, and ask for its immediate consideration.
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Ms. LOFGREN. Yes, Mr. Speaker, I do.
The SPEAKER pro tempore. Is there objection to the request of the gentlewoman from California?
There was no objection.
Ms. LOFGREN. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, 6 weeks ago the House of Representatives passed H.R. 2844, the Continuity of Representation Act of 2003, which was written and offered by the gentleman from Wisconsin (Mr. Sensenbrenner). This bill provides for the expedited special election of new Members of Congress to fill seats left vacant in extraordinary circumstances.
Under this bill, when such extraordinary circumstances occur, a special election must be called within 45 days. This bill was an important first step in addressing how the House continues to function in the event of a catastrophe, and that is why I voted in support of the bill.
I would note that outside scholars have questioned whether or not the Federal Government has the jurisdiction to impose this scheme on the States. I do not argue that today, but I think to some extent there is an open question as to that. There is also a more fundamental issue which may be partially addressed today, and that is what happens in the 45 days between a disaster that could eliminate the House of Representatives and the holding of these special elections.
In the 45 days following September 11, the House of Representatives cast 69 votes. Some of them were very important measures that helped us respond to the terrorism event. If there is no House of Representatives, there can be no Congress, and if there is no Congress to play its role in the constitutional scheme, the only thing that could happen in such a circumstance would be for the President to assume dictatorial powers and to end our system of constitutional government, an outcome that no one in this House or in this country wishes.
Under H.R. 2844, the House of Representatives would have no way to function for a month and a half; and without the House, there is no Congress. Several Members have introduced constitutional amendments that would address this problem. The gentleman from Washington (Mr. Baird) has offered an amendment which we are just about to vote on today. I have also introduced a constitutional amendment, H.J. Res. 96, which takes a different approach from the Baird proposal; and our colleagues, the gentleman from Connecticut (Mr. Larson) and the gentleman from California (Mr. Rohrabacher), have done similar things.
This whole issue is very complex, and it may be that none of the amendments are quite ready for our approval, but they certainly do command our attention. All deserve to be debated by Members of Congress, yet I believe that the House would be best served if the committee of jurisdiction, the Committee on the Judiciary, were to have hearings to sort through the complexities of this issue and then be able to present our findings to the full House for consideration.
However, during the 108th Congress, the Committee on the Judiciary has not had a hearing on this issue to compare the various proposals and to discuss the advantages and disadvantages of each. In fact, I have requested a hearing. I did so during the markup of the Baird amendment in the Committee on the Judiciary, but none have been held.
Today, some may point out that there was a hearing on the constitutional amendment offered by the gentleman from Washington (Mr. Baird) in the 107th Congress. That is true, but the amendment on today's agenda is significantly different from the Baird amendment considered 2 years ago. This is a new amendment that was first introduced last December.
A distinguished commission that included former Speakers Foley and Gingrich, as well as Lloyd Cutler and former Senator Alan Simpson, studied this matter at some length and reached the conclusion that we need a constitutional amendment. I am not suggesting that we should simply accept their recommendations, but at the very least we should consider and evaluate their findings before we cast a vote that will define the stability or instability of the country in the event of a national crisis. Unfortunately, the Committee on the Judiciary has not had a single hearing on any of these amendments, so we will not have the benefit today of hearing from the scholars, former speakers and other distinguished leaders on this complex issue.
And now the leaders of the whole House are making the same error as the Committee on the Judiciary. They have scheduled a vote on an amendment that will decide the fate of our Congress during a catastrophe without first holding hearings to address the merits of the Baird approach and all of the others proposed by various leaders on the continuity of Congress.
Let me repeat. Today we are being asked to vote on an amendment to the United States Constitution, but we have not had even one hearing on the amendment in the Committee on the Judiciary in this Congress. It is not often that the Committee on the Judiciary marks up a constitutional amendment to the full House before holding a hearing.
Consider, for example, the constitutional amendment to protect the rights of crime victims. That particular amendment was introduced in the 108th, 107th, 106th, 105th and 104th Congress, and on each occasion prior to markup there were Judiciary Committee hearings.
Also, consider the committee's treatment of a constitutional amendment to prohibit flag burning. A proposal on this issue was introduced in the 108th, 106th, 105th and 104th Congress, and each time the Committee on the Judiciary undertook hearings.
Finally, in the 105th and 104th Congress, a constitutional amendment was introduced to limit the Federal Government's ability to raise taxes, and hearings were permitted on each occasion.
The majority has already seen fit to schedule a series of five judiciary hearings over the course of several months to discuss the issue of same-sex marriage and a potential constitutional amendment. It only makes sense that this House should not vote on an amendment to the U.S. Constitution before the Committee on the Judiciary holds at least one hearing.
This issue of the continuity of Congress should not be an exception. It is vitally important to our democracy and requires more deliberation.
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Today, like I did in the Committee on the Judiciary 1 month ago, I will not vote to support the Baird amendment; but I will vote on a motion to recommit so that the Committee on the Judiciary will have a chance to appropriately hold hearings and review various approaches to this vital issue to our democracy. Some will reach a reasoned, but different, conclusion relative to the Baird amendment itself; but I think all will agree this body would be better served with extensive hearings on this complicated and enormously important subject.
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Mr Ms. LOFGREN. Mr. Speaker, I yield 13 minutes to the gentleman from Washington (Mr. Baird), the author of this legislation.. Speaker, I reserve the balance of my time.
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Ms. LOFGREN. Mr. Speaker, I would note that when the Founding Fathers spoke at that time, they were contrasting with a Senate that was appointed.
Mr. Speaker, I yield 3 minutes and 45 seconds to the gentlewoman from Texas (Ms. Jackson-Lee), a distinguished member of the Committee on the Judiciary.
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Ms. LOFGREN. Mr. Speaker, I yield 3 minutes to the gentleman from New York (Mr. Nadler), a distinguished member of the Committee on the Judiciary and the ranking member of the subcommittee.
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Ms. LOFGREN. Mr. Speaker, I yield 1 minute to the gentleman from Arkansas (Mr. Snyder).
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Ms. LOFGREN. Mr. Speaker, I yield 3 minutes to the gentleman from Rhode Island (Mr. Langevin).
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Ms. LOFGREN. Mr. Speaker, I yield 2 minutes to the gentleman from North Carolina (Mr. Watt), a distinguished member of the Committee on the Judiciary.
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Ms. LOFGREN. Mr. Speaker, I yield 3 ¾ minutes to the gentleman from California (Mr. Rohrabacher).
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Ms. LOFGREN. Mr. Speaker, I yield 4 minutes to the gentleman from Washington (Mr. Baird), the author of the amendment.
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Ms. LOFGREN. Mr. Speaker, I yield 10 seconds to the gentleman from Washington (Mr. Baird) to make a correction.
Mr. BAIRD. Mr. Speaker, I apparently misspoke earlier when I mentioned it was the gentleman from Texas (Mr. Smith) who expressed objection to my opportunity to speak in the Committee on the Judiciary. I regret that. There was a member of the majority. I thought it came from the gentleman from Texas (Mr. Smith). I apparently was in error, and I apologize for the mistake.
Ms. LOFGREN. Mr. Speaker, I reserve the balance of my time.
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Ms. LOFGREN. Mr. Speaker, I reserve my time.
Mr. SENSENBRENNER. Mr. Speaker, I am prepared to close debate if the gentlewoman from California will do so first.
Ms. LOFGREN. Certainly.
The SPEAKER pro tempore (Mr. Simpson). The gentlewoman from California (Ms. Lofgren) is recognized for 4 minutes.
Ms. LOFGREN. Mr. Speaker, I yield myself such time as I may consume.
I think it is important that we have hearings in the Committee on the Judiciary to examine this subject matter. Several speakers have suggested that to have a constitutional amendment to provide for the temporary replacement of Members of the House so that we could have a Congress that acts before elections can be held would be the end of democracy. I think that we need to come to grips with the fact that if they kill us all, we have some bad choices. Here they are.
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We can have an appointed government, because there is a line of succession to the Presidency, in the Senate there is a provision in the Constitution for their appointment, and no House of Representatives, which means that the appointed President would assume dictatorial powers. Or we could have a constitutional amendment that allows for the temporary appointment of Members of the House until special elections can be held so that the House is made up of elected representatives. I think those are the choices that face us.
Now, the American Enterprise Institute did a good thing. They put together a commission that looked at this whole issue, and here is what they said in their report: "While some protections," they say, "exist for reconstituting the Presidency, Congress would have a far more difficult time. It might not function well or at all. Ensuring the continuity of Congress is now a more pressing need than at any previous time in our history. According to two of the 9/11 plotters, the fourth plane that crashed in Pennsylvania was headed for the Capitol, and it is entirely conceivable the Congress will again be a target."
It is interesting that although we have proceeded on pretty much a party-line basis in the discussion of this matter, not completely but almost completely, and it was certainly a party-line vote in the House Committee on the Judiciary, the commission itself was very bipartisan. The honorary cochairmen were President Jimmy Carter and President Gerald Ford. The cochairmen were Lloyd Cutler and former Senator Alan Simpson.
Tom Foley, the former Speaker, and Newt Gingrich, the former Speaker, who did not agree on a lot, agreed on this. Further, Bob Michel, who was the minority leader for so many years and is so well regarded, served on this commission with Leon Panetta, and they agreed as well that what we need is a constitutional amendment.
The alternatives to a constitutional amendment do not solve the problems of mass vacancy. They have a chapter indicating why special elections are helpful but not sufficient, and here is what they say: "The President would act without a check, extra constitutionally in some cases, until Congress reconstituted itself. In addition, there is a possibility that a Congress of greatly reduced size would act, and that the vast majority of Americans could view this Congress as illegitimate. Shorter election cycles would not eliminate any of these problems but only slightly shorten their duration."
They point out that "clarifying the quorum requirement is not a solution." And they say, "While the commission sees the value of clarifying the interpretation of the quorum requirement, it does not believe that making the requirement more lenient will ensure the constitutional continuity of Congress. Quite the opposite. A lenient quorum requirement might result in a small number of Members acting as the whole Congress and calling into question the legitimacy of congressional actions. The commission does favor a clarification of the quorum requirement, but not as a substitute for the constitutional amendment."
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MOTION TO RECOMMIT OFFERED BY MS. LOFGREN
Ms. LOFGREN. Mr. Speaker, I offer a motion to recommit with instructions.
The SPEAKER pro tempore. Is the gentlewoman opposed to the joint resolution?
Ms. LOFGREN. I am.
The SPEAKER pro tempore. The Clerk will report the motion to recommit.
The Clerk read as follows:
Ms. Lofgren moves to recommit the joint resolution H.J. Res. 83 to the Committee on the Judiciary with instructions to conduct hearings on the subject matter of the joint resolution.
The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from California (Ms. Lofgren) is recognized for 5 minutes in support of her motion.
Ms. LOFGREN. Mr. Speaker, in the 45 days after September 11, this House first met to show the American people that their Congress was still intact, and then we went to work.
On September 13, we provided for the expedited payment for public safety officers who were killed or suffered catastrophic injury; we passed on September 13 the Victims of Terrorism Relief Act, the Emergency Supplemental Appropriations Act; on September 14 we authorized the United States Armed Forces to take action against those responsible for the attacks; we adopted the Air Transportation Safety and Stabilization Act; we made appropriations; we adopted bills to combat terrorism and adopted the Financial Anti-terrorism Act, the Bioterrorism Enforcement Act, and the list goes on and on.
Those were important activities. And if there were no Congress, those either could not have occurred or the executive would have had to assume the legislative authority that is by Constitution vested with the Congress. And as has been stated before, the Congress cannot exist unless the House of Representatives exists.
Now, we know that the temporary appointments can only be made if we are to change the Constitution. And although some think this is a bad idea, what we are asking is that we have a thorough study of this whole subject in the committee of jurisdiction in the House Committee on the Judiciary.
There are many issues that we need to discuss. There are, as the commission pointed out, several approaches that can be made, a broad approach that delegates to the Congress the ability to provide for replacements by statute, or a prescriptive approach similar to the one promoted by the gentleman from Washington (Mr. Baird).
What is incapacitated? How do we define that? If there is an appointment, is that person eligible to run for reelection? And if they are serving because of incapacity, will they be replaced when the incapacitated Member resumes their abilities? Who would do the appointments: the courts? the Member? the governor? the legislature of each State? These are many questions that need to be answered, and all of them should be studied.
Mr. Speaker, I yield 2 minutes to the gentleman from Washington (Mr. Baird), the author of the amendment.
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Ms. LOFGREN. Mr. Speaker, I would ask only that we approach this on a bipartisan basis in the committee. We should hold hands and work on this as a team, not fighting each other on party-line votes.
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Ms. LOFGREN. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.