On the Hill - A Republic, if We Can Keep It

ON THE HILL

A Republic, if We Can Keep It

Tuesday, September 9, 2003

Amend the Constitution so a terrorist attack can't cripple Congress.

By John Cornyn

After the Sept. 11 attacks, Congress responded swiftly in appropriating funds to bolster national security, stabilize our economy and provide for victims' families. But while legislation was enacted to secure our airports and borders as well as authorize the use of military force, Congress has yet to act on one critical protection: Keeping the legislature functioning in the wake of a future terrorist attack.

Two years is too long. So today I will chair the first in a series of hearings to examine weaknesses in our government-and do something about it. We will consider what measures are necessary to guarantee continuity of Congress.

Congress cannot constitutionally act without a majority. Our Constitution is explicit on this point, because our Founders believed it fundamental to our representative form of government. As Alexander Hamilton noted in Federalist 59, the Constitution empowers states to shut down Congress by refusing to send representatives. In fact, during the first Congress, neither the House nor the Senate was able to operate for an entire month, because a majority of representatives and senators failed to appear for duty. Both chambers waited for "a quorum, consisting of a majority of the whole number."

This vulnerability was deliberate. As one Constitutional Convention delegate urged, "in 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." Congressional power exercised by just a handful of members thus not only is 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 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 majority quorum requirement, terrorists could shut Congress down by killing or incapacitating a sufficient number of representatives or senators.

Our ability to ensure Congress would be able to continue to function under the current constitutional restrictions 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 the problem of large numbers of members in either chamber being incapacitated. Vacancies in the House can be filled only by special election. That takes months to conduct, for reasons of mechanical feasibility, democratic integrity, and the rights of military and other absentee voters.

What's more, it is impossible to address the problem of incapacitated members. 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 four years.

Accordingly, the Continuity of Government Commission, a bipartisan panel of former congressional leaders and government officials from across the political spectrum, unanimously endorsed a constitutional amendment to fix this problem in cases of catastrophic attack. Just as the 25th Amendment ensures continuity of the presidency, the proposed amendment would ensure continued congressional operations.

As we mourn the tragedy of Sept. 11, we should also take some comfort in the fact that further attacks within our borders have been avoided thus far, in part because Congress has upgraded our ability to prosecute the war on terrorism and reorganized our federal government to bolster homeland security.

Had the events of Sept. 11 unfolded differently, however, none of this legislation could have been enacted in timely fashion. United Airlines Flight 93, which crashed in Pennsylvania, was likely headed for the Capitol. But for a late departure and the ensuing heroism of the passengers, Congress might have been destroyed, leaving the nation with no constitutional means of legislative response.

In an age of terrorism and a time of war, few things could be more important than ensuring that the U.S. government-the nation's most vital instrument of national security-is failsafe and foolproof, capable of surviving even the most devious and destructive of terrorist plots. Nobody likes to plan for his own 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.

Mr. Cornyn, a Texas Republican, is chairman of the Senate Subcommittee on the Constitution, Civil Rights and Property Rights.