Providing for Consideration of H.J. Res. 83, Prop. an Amend. to the U.S. Constitution RE the Appointment of Individuals to Fill Vacancies in House
PROVIDING FOR CONSIDERATION OF 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 -- (House of Representatives - June 02, 2004)
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Mr. McGOVERN. Mr. Speaker, I yield myself 6 minutes.
(Mr. McGOVERN asked and was given permission to revise and extend his remarks.)
Mr. McGOVERN. Mr. Speaker, I want to thank my friend, the gentleman from Washington (Mr. Hastings), for yielding me the customary 30 minutes.
Mr. Speaker, today the House is debating the continuity of Congress. We are attempting to answer important questions: What happens to the House of Representatives if a majority of Members are killed or incapacitated in a catastrophic event like a terrorist attack? How does the House continue to function if there are not enough Members to constitute a quorum?
These are not easy questions to answer. Indeed, they are not easy questions to talk about or to think about. Nobody wants to consider what happens if they and their friends and colleagues are attacked, but they are questions that we must face head on. And they are questions that elicit strong policy answers from those who have taken the time to study the issue.
Some believe that amending the Constitution is the proper course. Others disagree, arguing for statutory fixes. But it seems to me that we could all agree on one thing: that these issues should transcend partisan politics. But not in this House.
The Republican leadership cannot seem to help itself when it comes to the way it manages this body. They seem to be addicted to stifling debate, to muzzling Members of both parties, to partisan rules and lousy procedures, and to shredding the committee process.
And so I rise today in strong opposition to this rule because the Republican leadership has once again taken a nonpartisan issue and dragged it into the partisan mud. Instead of working side by side with Democrats, the Republican leadership ignored the proper procedures of this body and rushed this constitutional amendment to the floor for a vote.
This rule makes in order 90 minutes of general debate. That is 90 minutes more than the chairman of the Committee on the Judiciary, the gentleman from Wisconsin (Mr. Sensenbrenner), held in hearings on this amendment. Let me say that again. In the 108th Congress, there has not been one single hearing about a constitutional amendment on this issue.
The chairman of the Committee on the Judiciary found time to write a very eloquent op ed piece in this morning's Washington Post, but apparently could not find the time to hold a hearing. The chairman of the Committee on the Judiciary and the distinguished chairman of the Committee on Rules, the gentleman from California (Mr. Dreier), hold strong views that the Constitution should not be amended. They may be right. However, I honestly do not believe that this whole issue has been given the serious and thoughtful attention and consideration that it deserves.
There is no reason to bring this bill to the floor without hearing from academics, lawyers, Members of Congress, Senators, former and current administration officials, liberal, moderate, and conservative interest groups. Many of those experts served right here as Members of Congress as members of the Committee on the Judiciary. Why are we not taking advantage of their expertise?
I am especially puzzled by this unnecessarily partisan process given that this is not a hot topic in the elections. I think it is safe to say that not a single congressional race this year will turn on whether the candidate supports constitutional or statutory remedies for the continuity of Congress. This is not what people are talking about around their kitchen tables. But it is important, and it should be handled correctly.
This rule makes in order only the constitutional amendment offered by the gentleman from Washington (Mr. Baird). Yet last night, the gentleman from California (Mr. Rohrabacher) came before the Committee on Rules with two proposals. Several members of the Committee on Rules had questions and sought clarification on certain aspects of his ideas.
It was a very, very interesting conversation. But it was not a discussion that should have taken place in the Committee on Rules less than a day before the House votes on a constitutional amendment. It should have taken place at a hearing of the Committee on the Judiciary.
Mr. Speaker, the American people expect and they deserve a House that works together when this country faces adversity. After the September 11 attacks, the Speaker of the House and the minority leader brought our two parties together for a bipartisan caucus to discuss what happened and to discuss the next steps. During those next days and weeks we were not two parties, we were one country. I believe that we need to once again join together in a bipartisan caucus to talk about this important issue and decide on the steps that we need to take, to bring together experts from across the political spectrum and to do what is right for the country and for the Congress.
Mr. Speaker, this constitutional amendment was brought before the House in the wrong way. This rule is the wrong rule, and I would urge my colleagues to reject it.
Mr. Speaker, I reserve the balance of my time.
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Mr. McGOVERN. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would like to say to the distinguished chairman of the Committee on Rules that what today is supposed to be bipartisan is more than just giving the gentleman from Washington (Mr. Baird) his day on the floor.
Last night, in the Committee on Rules, the chairman said this is a very serious issue. He mentioned on the floor today that it is a very controversial issue. It would seem to me that if it is a serious issue and a controversial issue and if we are going to have a process here that both sides can respect, then at a minimum the committee of jurisdiction, which is the Committee on the Judiciary, should have held a hearing on it. We reported this measure out on a very partisan vote in the Committee on the Judiciary without a hearing on the proposal that we are debating here today.
The chairman of the Committee on Rules says that we are working in a bipartisan way. How can this be a bipartisan process when the committee of jurisdiction, the Committee on the Judiciary, has not held a hearing?
I would say that I read the chairman's op-ed piece today in the Washington Post, and I agree with much of what he is saying, but I have a lot of questions. There were members of the Committee on Rules last night who had a lot of questions. There are Members who are not on the floor right now who have a lot of questions. I think that it is important that we have a process that has some integrity to it, a process where people can have their questions raised and answered; and this is not the process.
Mr. Speaker, I yield 30 seconds to the gentleman from California (Mr. Dreier).
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Mr. McGOVERN. Mr. Speaker, I yield 30 seconds to the gentleman from Washington (Mr. Baird).
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Mr. McGOVERN. Mr. Speaker, I yield 10 seconds to the gentleman from California (Mr. Dreier).
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Mr. McGOVERN. Mr. Speaker, we have a whole bunch of speakers here on our side. Could maybe your side yield the distinguished chairman some time?
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Mr. McGOVERN. Mr. Speaker, I yield myself such time as I may consume.
Before I yield to the gentlewoman from Texas, I should just point out to the chairman of the Committee on Rules that the gentlewoman from California (Ms. Lofgren) tried twice during the markup to postpone consideration of the gentleman from Washington's (Mr. Baird) amendment for a couple of weeks to allow for there to be an opportunity for Members to offer amendments and there to be a hearing, and the motion was tabled.
Mr. Speaker, I yield 5 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).
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Mr. McGOVERN. Mr. Speaker, I yield myself such time as I may consume.
Let me just say to kind of clarify what the concerns are on this side of the aisle. This is an important issue. This is an important topic that we are talking about. I think all of us can agree on that. This is supposed to be a deliberative body where we deliberate, and that means hold hearings where we have people who are experts on some of these issues be able to talk and testify and offer their input.
I am not sure whether it is a good idea to amend the Constitution, but I have to tell my colleagues I am appalled by this process that we would bring an issue like this to the House floor and to ask Members to vote up or down on it without holding hearings in the committee of jurisdiction. That is not the way this place is supposed to work.
The people of this country, the people of this institution deserve a lot better.
Mr. Speaker, I yield 7 minutes to the gentleman from Washington (Mr. Baird).
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Mr. McGOVERN. Mr. Speaker, I ask unanimous consent to insert an article that was written by Professor Colleen Shogan, who is a professor of Government and Politics at George Mason University. This article appeared in yesterday's Roll Call.
The SPEAKER pro tempore (Mr. Shaw). Is there objection to the request of the gentleman from Massachusetts?
There was no objection.
[From Roll Call, June 1, 2004]
On Continuity, Both Parties Need To Cooperate
(By Colleen Shogan)
The debate over how Congress should reconstitute itself in the wake of a devastating terrorist attack has evolved into a partisan melee with experts, staffers and elected officials talking past one another. The same arguments are repeated over and over again, with interested parties now seeming to treat the issue as a law school exercise that rewards the most arcane legal reasoning.
It's true that when tinkering with the Constitution, and interpreting the meaning of the Founders, we must pay attention to the details. But along the way, we should not lose sight of the larger issues that surround the preservation of Congress and its continuity. The current debate has given scant attention to several important points-points that may have the power to move deliberations beyond the impasse over whether a constitutional amendment is needed or whether appointments should take precedence over special elections.
Virtually everyone agrees that the first priority in the wake of a disaster is to make sure the federal government continues to function. The oft-cited reason for quickly reconstituting the House is to preserve its representative capacity. While this rationale is essential, an equally important reason is to preserve legislative power vis-a 2-vis an emboldened executive.
At a recent Rules Committee hearing on continuity, one Member wondered if a House of Representatives with only a few able Members should cease to function and cede power to the president until it was able to regain membership. Although it is appropriate to ask this question, the answer is a resounding "no."
If Congress cannot function properly, unilateral executive actions will serve as the operating mechanism of the federal government. For several months in 1861, Abraham Lincoln prosecuted the Civil War unilaterally, until Congress reconvened in early July. The suspension of habeas corpus, the naval blockade, and the enlargement of the Army and Navy undertaken by Lincoln are conventionally revered in American history as acts of necessity and preservation. But in the Second Treatise of Government (Chapter 8, Section 111), John Locke warned against the expansion of the executive "prerogative" power.
Locke conceded that "virtuous princes" who expand executive power in a time of crisis perform a noble service, but added that those princes who come to power in the aftermath will always be tempted to abuse the precedents set before them. We may recall that Richard Nixon invoked Lincoln's expansive use of executive power when he refused to turn over the Watergate tapes. Locke's so-called "virtuous princes" are not the problem; rather, it is those who follow in their wake.
In short, it would be a travesty if the legislative branch ceased to operate with legitimacy at a time of crisis in the United States. Emergency executive actions that Congress or the Supreme Court subsequently recognize as legally permissible ultimately enlarge the discretionary power of the executive branch. Congress's effectiveness as a bulwark against the executive should encourage lawmakers to design logistical procedures that insure the immediate reconstitution of the House and Senate if mass vacancies or incapacitations occur.
The Constitution requires that all members be selected by election, following the Founders' desires to keep the House close to the people. Yet while the electoral integrity of the House is significant, so too is the fact that the Founders designed the House to provide proportionate and equal representation to all citizens.
Read in its entirety, the Federalist Papers aggressively promote the republican nature of American government, while defending its democratic allowances cautiously. Strictly speaking, the United States is a "democratic republic." If only a few Members were left to represent the whole nation for a period of time before special elections could be held, would that arrangement accurately reflect the Founders' republican vision? Democracy and republicanism are essential to American governance, and the solution to continuity should span both ideals.
The relevance of both democratic and republican norms suggests that a two-part approach might provide the most comprehensive resolution to the problem of congressional continuity. The Continuity in Representation Act of 2004, sponsored by Rep. Jim Sensenbrenner (R-Wis.), ensures the democratic character of the House by mandating that special elections be held within 45 days of a catastrophe. While that time period may prove too short to conduct several hundred special elections after a massive attack, the underlying electoral motivation behind the bill is sound.
By itself, however, the measure is not a comprehensive answer. To preserve the representative function of the House, an amendment allowing the temporary appointment of members must be enacted. In the context of partisan rancor, these two approaches to continuity have been presented as mutually exclusive measures. But instead, a constitutional amendment should be considered compatible with Sensenbrenner's bill, together producing a federal law that mandates timely special elections as well as a constitutional amendment that provides for temporary House appointments. Only this can preserve the Founders' democratic and republican ideals.
It is time to move beyond the repetitive rhetoric and the impenetrable inflexibility of rival solutions. Each side has solved part of the problem; only a blend of approaches can settle the looming question of continuity. Adherence to the Founders' ideals depends on a bipartisan approach. Even more important, the balanced preservation of our nation's governing system in a time of crisis necessitates it.
Mr. McGOVERN. Mr. Speaker, I yield myself the balance of my time to close.
Mr. Speaker, if I can just read the first line of that column where Professor Shogan says, "The debate over how Congress should reconstitute itself in the wake of a devastating terrorist attack has evolved into a partisan melee with experts, staffers, and elected officials talking past one another."
I think, Mr. Speaker, what people on our side are concerned about is that the professor is absolutely right, that this issue has kind of become more partisan than it should be. In fact, it should not be partisan at all and this really is a time to kind of take a couple of steps backwards and to do the necessary deliberation and consideration that something this important requires. That is what we are asking for here.
I think it is hard for the other side to justify that this has been a fair and bipartisan process and that they are taking this issue seriously when the main committee of jurisdiction has not even held a hearing on this particular bill in the 108th Congress. So what we are asking for is that this serious issue be taken seriously, that the necessary deliberation and the necessary consideration be followed as we move forward with this legislation.
So with that, I would urge a "no" vote on the rule.
Mr. Speaker, I yield the balance of my time to the gentleman from Washington (Mr. Baird).
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Mr. McGOVERN. Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.
The SPEAKER pro tempore. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
Pursuant to clauses 8 and 9 of rule XX, this 15-minute vote on ordering the previous question on H. Res. 657 will be followed by 5-minute votes, if ordered, on adopting H. Res. 657; ordering the previous question on the amendment to H. Res. 656 and on the resolution itself; adopting the amendment to H. Res. 656; and adopting H. Res. 656, as amended.
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