November 05, 2003, 7:37 a.m.
Planning for the Unthinkable
How Congress will continue.

By John Cornyn

More than two years after the attacks of September 11, Congress is finally taking the necessary action to protect the nation by ensuring that our government continues to operate in the wake of another attack. Today I introduce a proposal to provide for the continuity of congressional operations, and in coming weeks, I will submit legislation to fix problems in our current system of presidential succession. These important issues demand the serious attention of Congress.

I was not in Washington when American Airlines Flight 77 struck the Pentagon. Nor was I a member of Congress a month later when a series of anthrax attacks threatened the lives of Capitol Hill workers. Yet both incidents reminded Americans across the country just how fragile our basic institutions of government can be.

Were it not for the late departure of United Airlines Flight 93 and the ensuing heroism of its passengers, the Capitol building might have been destroyed, killing numerous senators and representatives. Likewise, another, more sophisticated biological-weapons attack on Capitol Hill could incapacitate hundreds of members of Congress, leaving seats filled by individuals who would be unable to serve.

The American people must be able to rely on a functioning Congress in the wake of a catastrophic terrorist attack. Although not in session year-round, Congress may have the need to convene immediately in a time of crisis. In the days and weeks following September 11, Congress enacted numerous emergency laws and appropriations measures to stabilize our economy and bolster national security.

Yet we currently lack the tools needed to ensure continuity of congressional operations.

The Founders rightly required a majority of each House to constitute a quorum to do business, to ensure a nationally representative Congress. But the Constitution does not provide adequate mechanisms to ensure a continuing, functioning Congress if a majority of members is killed or incapacitated as the result of a terrorist attack.

If a majority of House members is killed, Congress could not operate until special elections were held around the country — a process that necessarily takes months, according to every state and local elections official who has contacted my office. Moreover, if a majority of representatives is incapacitated, Congress would be shut down until the next general election and the inauguration of a new Congress — a process that could take up to two years.

The situation in the Senate could be even more dire. The Seventeenth Amendment permits state legislatures to empower governors to make immediate appointments to fill vacancies in the Senate, and every state except Oregon and Wisconsin has chosen to do so. Yet the Constitution provides no mechanism for dealing with incapacitated Senators. If a majority of Senators is incapacitated by a biological weapons attack, Congress could be shut down for four years.

In an age of terrorism and weapons of mass destruction, our 1787 Constitution needs a minor upgrade. That is nothing to be embarrassed about. The Founders contemplated the need for amendments when they drafted Article V of the Constitution. Twenty-seven amendments have been ratified since our nation's Founding — including two regarding presidential succession (the Twentieth and Twenty-Fifth Amendments). It is time to amend the Constitution again, to secure a functioning Congress.

Earlier this year, the Continuity of Government Commission — a bipartisan panel of former congressional leaders and government officials across the political spectrum — issued a report unanimously recommending a constitutional amendment "to allow immediate temporary appointments to Congress until special elections can be held to fill vacancies or until matters of incapacitation can be resolved."

The response on Capitol Hill was, unfortunately, mixed. Many members of Congress strongly agree with the commission. Some, however, are reluctant to allow the appointment, rather than election, of Representatives, no matter how dire the emergency.

To protect the American people and ensure a functioning Congress, we must find a way to bridge this gap. Accordingly, the proposal I will announce today neither favors nor disfavors any particular method for ensuring continuity of congressional operations. It prefers neither special elections nor appointments. Instead, I propose a constitutional amendment to authorize Congress to enact laws providing for congressional succession — modeled after the provision of Article II authorizing Congress to enact laws providing for presidential succession. In addition, I propose implementing legislation to authorize each state to craft their own mechanisms for filling vacancies and redressing incapacities in their congressional delegations — modeled after the Seventeenth Amendment. And I plan to convene hearings early next year so that we can debate this proposal as soon as possible.

Today's announcement is the next step in a process of ensuring that our more than 200-year experiment in self-government will never perish from this earth. We must send the message to terrorists that there is nothing they can do to stop the American government from securing freedom here and around the globe. Nobody likes planning for their own demise, but two years is too long to wait. The time to plan for the unthinkable is now.

— John Cornyn is a Republican senator from Texas and chairman of the Senate Subcommittee on the Constitution, Civil Rights and Property Rights. Cornyn chaired two hearings on continuity of congressional operations and Presidential succession in September.