I. The Continuity of Government Commission's Proposal

The Continuity of Government Commission (COGC) warns of "a high probability" that, if a terrorist attack killed or incapacitated many members of Congress, "there would be no functioning Congress, or a Congress with such small membership as to call into question the legitimacy of its actions." (p. 6) The COGC recommends: "A constitutional amendment to give Congress the power to provide by legislation for the appointment of temporary replacements to fill vacant seats in the House of Representatives after a catastrophic attack and to temporarily fill seats in the House of Representatives and Senate that are held by incapacitated members." The COGC further recommends that Congress enact a law providing for temporary appointments be made by the states' governors, either without restriction or from a list of successors drawn up in advance by the member whose death or incapacity has occurred.

II. The Existing Provisions

Under the present Constitution, vacancies in the Senate can immediately be filled by appointment by the governor. Vacancies in the House, however, require a special election. The Constitution does not specifically deal with incapacity of a member of Congress. In 1981, the House declared vacant the seat of a comatose member when she was unable to be sworn in after her re-election. Although there is no precedent for the House to declare a member incapacitated during his term, it is a fair conjecture that both the House and Senate already possess that power by implication.

III. Unnecessary and Dangerous

The COGC proposal is a result of prolonged and serious consideration. It has an appealing simplicity and breadth. On further reflection, however, the proposal is unnecessary as well as dangerous to the integrity of our representative government.

IV. Importance of Election of the House by the People

Without a single exception, every person who has ever served as a member of the House of Representatives has been elected to that office by the people of his district. This is a non-negotiable point. The Constitution provides that those are qualified as electors of the House who are qualified as electors of the most numerous branch of the state legislature. In commenting on this in The Federalist, no. 52, James Madison wrote: "The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the Convention therefore to define and establish this right, in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned."

Not even a pressing necessity should justify even a supposedly "temporary" abrogation of the right of the people to elect their representatives. Indeed, it is precisely in times of crisis or catastrophe that it is most important to preserve in the representatives "an immediate dependence on, and an intimate sympathy with the people." (The Federalist, no. 52) If a terrorist attack decimated the House of Representatives, the confidence of the people in our democratic institutions would be enhanced by their direct election of the replacement members and would be diminished by the appointment of those replacements by executive fiat.

V. A Constitutional Amendment is Unnecessary

A. Expedited Special Elections 
In any event, it is not necessary to amend the Constitution to enable Congress to function after a catastrophic attack. Vacancies in the Senate can be filled immediately by appointment of the governor. With respect to the House of Representatives, the states can expedite the required special elections to fill vacancies. The COGC reports that the average length of a vacancy since 1985, from the death of a member until his replacement was sworn in after the special election, was 126.4 days. (Appendix IV) It is fair to surmise that the elapsed time could be shortened under the urgency created by a terrorist attack.

B. Legitimacy of a Temporarily Reduced House 
Special elections, however, do not happen overnight. It is fair to ask: If an attack left the House of Representatives with only a handful of members, how could it legitimately function? The answer is two fold: First, although the Constitution provides that "a majority of each [House] shall constitute a quorum to do business" (Art. I, Sec. 5, cl. 1), it is a debatable but fair conclusion that each House has the inherent power to exclude deceased and incapacitated members in calculating the number necessary for a quorum. The issue is pertinent primarily with respect to the House of Representatives, since Senate vacancies can be filled immediately by the governor. Suppose, as the COGC report conjectures, "only five House members survive" (p. 2) an attack. And suppose those five members proceeded to act as the House. The republic would survive quite well. The COGC states that such a small membership could "call into question the legitimacy of its actions." (p. 6) But numerous laws have been enacted, often by voice vote, with very few House members present, including, for example, the Wartime Emergency Supplemental Appropriations of 2003, the legitimacy of which has not been called into question. Also, a House of five elected members would have more "legitimacy," as the living continuation of the only directly elected entity in our government, than would a House composed of those five elected members and 430 appointed members. Any concern about a small surviving House enacting imprudent legislation should be allayed by the bicameral requirement of the concurrence of the Senate, which could be immediately restored to full strength by appointment after an attack.

Incidentally, the Patriot Act was enacted by the full House and Senate after 9/11. That act is a subject of debate and concern as a dubious and hasty response to that crisis. If both elected chambers of Congress can produce such a questionable law, why would it make sense to nail into the Constitution a potential warrant to empower a Congress, dominated by unelected appointees, to enact whatever it sees as an appropriate response to such a crisis?

C. Stand-by Emergency Legislation 
Expedited special elections provide one basic solution to the crisis scenario

painted by the COGC report. The second solution is for Congress to enact stand-by legislation, including provisions for funding, authorizing the president to take appropriate action to deal with any catastrophic event even if the Congress has been practically wiped out. Such legislation should include sunset provisions requiring re-approval by Congress as soon as it is reconstituted. In short, we do not need to abrogate even "temporarily" the principle of our elective government to deal with a terrorist attack or other catastrophe.

VI. Unavoidable Difficulties in Any Constitutional Amendment

The COGC report "recommends an amendment of a general nature that allows Congress to address the details through implementing legislation." (p. 58) The amendment proposed by Professor Michael Glennon (p. 51) provides "Congress shall have power to regulate by law the filling of vacancies that may occur in the House of Representatives in the even that a substantial number of members are killed or incapacitated." This language is unavoidably open to broad interpretation and potential abuse. What are the limits, if any, to the potential definitions of "substantial" and "incapacitated"? Nor is there any discernible limit to the legislation Congress would authorize to enact. The proposal by Norman J. Ornstein embodies the concept of gubernatorial appointment from a list of "designated successors" named by the House member or senator. This provision is designed to forestall appointments made uniformly from the governor's own party that could change the political composition of the Congress. The Ornstein proposal is for a constitutional amendment rather than a statute. It understandably leaves uncovered some questions which could arise. For example, it requires that the member must designate his successors "in advance." But "in advance" of what? If he must designate them before the election, the people are voting, in effect, not for the one member but for his team which must include "not fewer than 3 nor more than 7 emergency interim successors." Or if the member is allowed to designate his successors after his election, how does that contribute to a fully informed decision by the voters on election day? In the Ornstein proposal, moreover, the member is mandated to "review and, as necessary, promptly revise the designations" to ensure that there are always at least three. If, before the election, he named Able, Baker and Charlie as his successors, could he later substitute Delta, Easy and Fox? Or does a successor, once designated, acquire a form of tenure so that he cannot be replaced without his consent?

These and other questions that could be raised illustrate the complications that would necessarily arise from the abandonment, even on a "temporary" basis, of the constitutional mandate for popular election of the House. Nor could such complications be avoided by requiring the governor to appoint a successor of his own choice from the same party as the deceased or incapacitated member. In light of the ideological diversity within the Democratic and Republican parties, appointment by the governors even from the same party could change the ideological composition of the Congress contrary to the will of the people.

VII. Do Not Experiment with the Constitution

To raise these questions is not to fault the Glennon and Ornstein proposals, which were seriously and studiously crafted. They are, however, proposals for constitutional amendments. The ambiguities and open questions unavoidably found in them reinforce the conclusion that constitutional amendments ought to be proposed only with extreme caution. The amendment proposed by COGC is at war with the right of the people always to elect their members of the House of Representatives. The proposed amendment, moreover, is unnecessary. When it is not necessary to amend the Constitution, it is necessary not to amend the Constitution.

Charles E. Rice is professor emeritus at Notre Dame Law School and visiting professor at Ave Maria School of Law.