Defending Freedom and Democracy

DEFENDING FREEDOM AND DEMOCRACY -- (House of Representatives - September 22, 2004)

The SPEAKER pro tempore. Under the Speaker's announced policy of January 7, 2003, the gentleman from California (Mr. Dreier) is recognized for 60 minutes as the designee of the majority leader.

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Mr. MCGOVERN. Mr. Speaker, our Constitutional Framers drafted a living document that, while not perfect, created a vibrant representative democracy. They crafted the Constitution as a document that could be improved over the course of history. The Framers themselves would probably agree that the Constitution, as originally drafted, would not be perfect into perpetuity. Indeed, in Federalist 43, James Madison states "that useful alterations will be suggested by experience, could not but be foreseen." The Framers improved the Constitution by amending it with the Bill of Rights. Since this important document was signed in 1789, a total of 27 amendments have been added.

As Members of Congress, we take an oath to uphold and defend that Constitution. It is our duty to take the proper actions to ensure that our democracy and our way of life are preserved for the future. The tragic attacks of September 11, 2001, and the threat of future attacks require that we ensure that there is a continuity of the government created by the Framers.

Before September 11, 2001, the United States had withstood a civil war, attacks on its soil and attacks upon Washington, DC and the Capitol itself. But the continuity of government established by the Constitution, and the ability of the Congress to fulfill its Constitutional duties, has never been more at risk from attack. Today, we live with the grim knowledge that a terrorist attack could take place again here in the United States and that terrorists may attempt to attack and destroy this Capitol Building. And it is with this understanding that the Congress must ensure that the government established by the Framers continues well into the future.

The Framers and the Congress, over the past 216 years, created a presidential line of succession in case the President is killed or dies in office. Article II, section 1, paragraph 6 establishes: the Vice President as the next in line to take over the presidency in case the President is removed from office for any reason. This same clause also gives Congress the power to establish the line of succession beyond the Vice President, and the Congress acted by creating this line of succession, as established in chapter 3, section 19 of the U.S. Code. There are safeguards in the Constitution and established by law should a President become unable to fulfill his or her constitutional duties, die, or be removed from office. Simply, there is a plan to ensure that the executive branch can continue to exist should something happen to the President.

The Constitution also established the bicameral Congress-the House of Representatives and the Senate-and established that the House is a body that can only be constituted of Members who are directly elected by citizens of the United States. The Constitution says that a vacant House seat can only be filled by direct election, and a seat can only become vacant at the end of a 2-year term established in article 1, section 2, paragraph 1 of the Constitution or with the removal of a Member of Congress either by death, resignation, declination, withdrawal, or by expulsion.

However, as I've already stated, the Framers of the Constitution never planned for an event, including an attack on this country, that could cause mass death or incapacitation of Members of Congress. After September 11th, we need to ask ourselves how we can preserve our government, as designed by the Framers, in the wake of a catastrophic event. And we need to do so with an eye looking toward the future.

A key problem created by an attack that kills or incapacitates more than half of the Members of Congress actually lies in the way a quorum of the House is defined. It may sound arcane to some, but establishing a quorum is vital to the way our government works. If the House were not able to establish a quorum, this body could not vote on legislation. In the wake of a catastrophe, the House must be able to act. However, without a quorum, the U.S. government could grind to a halt until a quorum is actually established. In other words, if this country were attacked again and the House could not establish a quorum, we could not pass important legislation like emergency appropriations, improvements to already established security laws, or even a declaration of war.

At the beginning of the 108th Congress, the House enacted an important rule change that codified a long-standing House precedent allowing the Speaker of the House to reduce the number of the quorum by one for each vacant seat in the House. This rule change took place with the adoption of H. Res. 5, the resolution adopting the Rules of the House for the 108th Congress.

The codification of this precedent is important, but it does not address the problem of incapacitation. If any number of Members of Congress were killed in a terrorist attack, this new rule change would allow the Speaker to reduce the whole number of the House that determines a quorum. But what would happen if an attack occurred in the United States and more than 218 Members were alive but not able to return to the House chamber to vote? The reasons for this could be anything from an attack that results in over 218 unconscious Members to a breakdown in the transportation system preventing Members of Congress from returning to Washington.

While this issue may not seem important compared to the issues that dominate the news these days-the continued instability and rising death toll in Iraq, the economic challenges in this country, and the presidential race, just to name a few-this is something the House of Representatives must address. Continuity of Congress, the ability to preserve the American government as established by the Framers in the Constitution, is an issue that transcends partisan politics and while we must take action to persevere the continuity of Congress, it is essential that we do so in a bipartisan way.

I strongly believe the House must act on continuity of Congress in a bipartisan fashion. There cannot be any other way for the House to act and for those actions to be considered legitimate. Simply, any rule change of this magnitude must transcend partisan politics.

But I must express my concerns with the public consideration and discussion of this issue and with the current draft that attempts to address incapacitation and a provisional quorum. I want to clarify that I am not making these statements as a Democrat or as a Member of the minority party. Rather, I am making these comments as one Member of Congress committed to defending the Constitution and protecting this institution and this country.

Mr. Speaker, I am dismayed that the Rules Committee only held one hearing on this issue. To Chairman DREIER's credit, the panel was distinguished, and the discussion was fairly comprehensive. But the reality is that one hearing on this issue is inadequate. We heard from then-Parliamentarian Charlie Johnson and members of his staff, former acting Solicitor General of the United States Walter Dellinger, and the Attending Physician of the House, Dr. John F. Eisold. While the discussion was lively, I don't believe it explored the topic of incapacitation to the fullest extent possible.

I am most concerned about Professor Dellinger's testimony. Unfortunately, the Republican majority on the Rules Committee decided to invite only one outside witness-Professor Dellinger. This witness, while well-informed and knowledgeable on this subject, was clearly brought in to validate the majority's views. No other outside witnesses were invited to testify.

Professor Dellinger is of the opinion that to address the problem of incapacitation, we only need to amend the quorum requirements in House rule XX. There are other experts, constitutional scholars and other lawyers including some congressional staff, who believe that such a change is unconstitutional and that the only way to change the quorum requirement is to amend the Constitution.

Amending the Constitution is serious business. Like Madison, I believe that amending the Constitution should be based on experience, and I strongly believe amending the Constitution should not be a knee-jerk reaction to a perceived problem. But unlike other proposed constitutional amendments that have been proposed in this Congress, the constitutional amendment to preserve the continuity of Congress, and the continuity of the American government as a whole, raises important concerns and deserves to have a thorough hearing and thoughtful discussion. Of course, the devil is in the details and the specific language of any proposed amendment is vital. But preserving this country as it was founded is one of our responsibilities as Representatives of the American people. I want to make clear that I'm not advocating for or against a constitutional amendment, but only that I believe it is a topic that deserves a fair and comprehensive hearing.

Unfortunately, it appears that the Chairman and some members of the Rules Committee and the Republican leadership have come to the conclusion-without comprehensive hearings-that a constitutional amendment is not needed and that all we need to address these challenges is a change in the quorum definition in the House Rules.

Along with my concerns that the Rules Committee only held one hearing, Professor Dellinger said something else that I fully support but, unfortunately, confirms to me that this process started off on the wrong foot. In his testimony, Professor Dellinger said that any change in the House Rules must be bipartisan and that there must be a bipartisan consensus before any change is made. Unfortunately, the Republican majority on the Rules Committee decided to share a draft of the proposed rule change with Professor Dellinger prior to the sharing it with the

Democrats on the Committee. I, for one, don't think such secrecy is considered bipartisan. I, however, believe that this is water under the bridge and that we must move past such events and deal with the issue at hand, which is guaranteeing the continuity of Congress in case of a catastrophic terrorist attack. I believe we still can work together and produce a true, bipartisan rule change.

Mr. Speaker, Chairman DREIER and his staff have drafted a proposed rule change that, except for one provision, is a good proposal. I am pleased that this proposed change has language defining the circumstances under which this process can be invoked. This proposal includes time limitations on the calls of the House required to determine whether there is a real quorum in the House. Should a quorum not be attained, the Sergeant-at-Arms will compile a report documenting the status of every Member currently elected to the House. I believe these are all good provisions and I'm pleased that Chairman DREIER and the Republican leadership worked with the Democratic staff to improve these provisions over the past few months.

However, the proposed rule change, as currently drafted, allows the Speaker of the House, after he receives the catastrophic quorum failure report from the Sergeant-at-Arms, to unilaterally declare that a quorum has not been attained and begin the process to reduce the total number of Members required for a quorum under catastrophic circumstances. The latest draft shared with me requires the speaker to consult with the majority leader and the minority leader on the content of the report, but it does not require that the concurrence of the speaker, majority leader and minority leader.

Mr. Speaker, I cannot support this proposal without the inclusion of "concurrence" of the speaker, majority leader, and minority leader.

The need for concurrence of both parties in the House is not just a partisan statement made by a Member from the minority party, but a real concern made by someone who reveres and respects this institution. And I'm not the only person who believes this. I want to read directly from Professor Dellinger's prepared testimony before the Rules Committee on April 29, 2004:

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For the rule's invocation to have true legitimacy, there must also be some procedural guarantee that the rule is not being improperly invoked for factional reasons. Unlike the traditional rule, where the quorum calculation is based on strictly objective measures such as death, the reduced quorum rule for extraordinary circumstances would be based on less clear-cut circumstances, presenting a heightened danger of manipulation. This loss of objective standards may be necessary in order to deal with the special problem the rule is designed to address; but Congress should certainly take care to minimize the risk of manipulation. For that reason, I strongly recommend that the power to invoke the rule be placed not solely in the discretion of the Speaker, but rather require as well the concurrence of one or more members of the minority party's leadership, from a list chosen ahead of time.

This need not be viewed as an encroachment on the Speaker's or the majority party's authority.

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There is a real danger that, after an attack or other national catastrophe, any action taken by the speaker without the concurrence of the minority leader could have the perception of partisan politics. This is true no matter which party controls a majority of seats in the House.

In times of crisis, any action by the House of Representatives must be bipartisan. There cannot be any perception that the majority is using any tool as part of a partisan power grab. The American public wants to be reassured that the House is acting in the best public interest; they want partisan politics to be put aside during a national crisis. They simply want to be safe, secure, and reassured that the American government will respond to their needs.

After September 11, 2001, the House came together and acted as one unified body. We put partisan politics aside. We held joint press conferences, we received joint briefings, and we conducted joint strategy meetings. Unanimity and consensus is vital during a national crisis. The unified message and unified actions-the one voice-coming from the House of Representatives after September 11, 2001 was reassuring to the American people.

Any action taken by the speaker of the House-irrespective of that speaker's party-that is not taken with the concurrence of the minority leader could be seen as inappropriate by the American people.

Requiring the concurrence of the minority leader puts the needs of the country ahead of the threat of partisan politics, and it is a necessary protection against anyone who may want to abuse our democracy during a time of national crisis.

Mr. Speaker, although I'm disappointed that it's taken this long to act on the issue of incapacitation-it's been over 3 years since the attacks of September 11--I'm pleased that the Rules Committee is finally acting on this important issue. I hope the chairman and the Rules Committee will look to the future, and realize that concurrence is an important part of this process that it is vital to show the American people that the Congress can put partisan politics aside in the time of crisis.

I want to thank the chairman for organizing this special order tonight. I look forward to working with him on this issue, and I hope he will take my views-and those of my Democratic colleagues on the committee-into account as he finalizes this proposal.

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