Continuity Amendment: Cure is Far Worse than Disease

The 9-11 attacks raise sobering questions about what might have happened had the targets been selected differently. Among the most disturbing is the thought that most or all of our Congress could have been destroyed with one blow. If that had occurred, our federal government would temporarily have been without a full legislative branch for the first time in history.

A private organization called the Continuity of Government Commission (CGC) was formed last year to develop a proposal for handling that situation. The CGC has now announced its recommendations: first, a Constitutional amendment providing that "Congress shall have the power to regulate by law the filling of vacancies that may occur in the House of Representatives and Senate in the event a substantial number of members are killed or incapacitated." A further proposal is that Congress implement this amendment by allowing the governor of each state to appoint replacement senators and representatives.

How would these proposals change things? Currently, vacancies in the Senate are filled by state governors making temporary appointments, just as proposed by the commission. This is consistent with the basic constitutional principle that senators represent their states. If Congress chose to follow all of the commission's recommendations, that procedure would continue. If the commission's amendment went into effect and Congress chose to implement it in some other way, it is impossible to say how the Senate vacancies would be filled.

Vacancies in the House, on the other hand, are currently filled by special election in each congressional district. The commission's proposal would have the vacancies filled by appointment, either by each state's governor as recommended by the commission, or by some unknown procedure to be decided by Congress. Even if Congress followed all of the commission's recommendations, House members would no longer represent the people in their districts. Instead, they would represent the governors, or whatever other officials Congress would grant the power to appoint replacements.

The proposals of the CGC are far more dangerous than the situation they are designed to handle. The worst that can happen if we change nothing is that a few surviving members of Congress would pass unwise legislation during the weeks it would take the states to arrange special elections. That would precipitate a crisis, but the damage done by such a rogue Congress could be reversed by the newly elected members in a few months. Meanwhile, the president could respond to the attack on our country under the existing provisions of the War Powers Act without a declaration of war by Congress.

Compare that short term crisis with the predicament we'd be in if the CGC has its way. In the best case, with Congress following all of their recommendations, governors would appoint all of the replacement members. Instead of having a truly representative Congress within weeks, we could have appointed members for up to two years. How much credibility would attach to any controversial laws passed by such a Congress?

Given the immense advantages of incumbency, the appointed members could be as hard to get rid of after their first terms as our elected incumbents are. This could radically change the political balance in Congress for many years to come. How the balance would change would depend on who happened to be in the statehouses at the time, not on the beliefs of the electorate in each congressional district.

Worse still, suppose that the Constitution were amended as recommended by the CGC, but Congress chose some other means of filling the vacancies. With Congress, there is no telling what procedure they might devise. If a majority happen to be on good terms with the sitting president, maybe they would specify that the president fill the vacancies. That's far-fetched, but the point is that the amendment gives Congress a blank check to choose whatever method they want.

Worst of all, think what an activist Congress could do with the undefined terms "substantial" and "incapacitated." The provisions of the amendment would go into effect whenever Congress decides there is a "substantial" number of vacancies. Could that be as low as ten, for example? The number would be whatever Congress wanted it to be. This allows too much latitude for congressional mischief.

The possibility of an atrocity against Congress as a whole is serious, and requires discussion. But the CGC proposals are dangerous to our system of government and ought to be rejected. Any solution we adopt must respect the representative nature of Congress.