Imagine that, on Sept. 11, the passengers on United Flight 93 had not risen against their hijackers. Instead of crashing in a Pennsylvania field, the flight might well have slammed into the U.S. Capitol, killing tourists, staffers and a sizeable portion of America’s legislators. How would the United States -- the government, that is -- have responded without a functioning legislative branch? For that matter, if tomorrow a host of congressional leaders comes down with smallpox, who would be in charge of the House of Representatives?
No one knows. In 50 years of Cold War hand-wringing, nobody bothered to sit down and figure out what would happen if someone managed to kill or incapacitate a substantial number of congressmen. Maybe no one thought it could happen. Maybe it was too gruesome to consider. Whatever the reason, Rep. Brian Baird (D-Wash.) has now proposed a constitutional amendment to fix this gaping what-if loophole.
Baird’s attempt to address the capital’s institutional uncertainties might work, at least on paper, but that’s not enough for Washington. What the city abhors -- even more than the prospect of calamity--is political uncertainty. It’s likely that Washington will avoid addressing even so fundamental an issue as its own potential destruction, if that means it can sidestep a difficult political problem.
Norman Ornstein, a resident scholar at the American Enterprise Institute, brought the problem of House succession to the capital’s attention in a Roll Call column published on October 4. Sure, goes his argument, the Constitution addresses the question of presidential succession. As far as the Senate is concerned, governors have the power to appoint replacements if special elections would take too long.
But there’s no way to deal with sudden vacancies in the House. The only way to replace congressmen is through special elections -- a process that takes months even under the best of circumstances. In case of catastrophe -- of the sort that is now thinkable--the remaining branches would be forced to govern through a patchwork of constitutionally dubious decrees and edicts.
Baird’s proposed amendment lays out how Congress could respond to doomsday. On Monday, he and Ornstein presented it to a crowded forum organized by the American Enterprise Institute. In short, it says that should 25 percent of the House of Representatives be killed or incapacitated, governors would have to appoint replacements within 7 days. Special elections would be held within 90 days. This would at least keep the body going -- deciding everything from declarations of war to economic stimulus packages -- until voters could have their say.
So far, so good. But that’s the institutional dimension. Other such questions remain to be answered, such as what number of surviving House members would constitute a minimum quorum, and where would the post-calamity body would meet, assuming the Capitol was uninhabitable or even gone? But one can see one’s way to resolving this kind of thing, and thus assuring confidence in legitimacy and continuity.
The problem lies in the political questions that the amendment leaves unresolved. For example, should governors be forced to adhere to existing party affiliations when appointing temporary replacements? Perhaps most important -- given the rise of bio-terror -- is who gets to define the meaning of "incapacitated." The current system does not allow members to vote from a remote location. What if half of them are being treated for a contagious disease? They might be capable of legislating, but being contagious they could not expose other members to infection. Are they "incapacitated"? If so, should they have a say in their appointed replacements? And what happens if a deposed representative suddenly overcomes his or her "incapacity"?
Baird admitted that it would be tough for congressmen to deal with the amendment. Members have recently had to deal with charges that they were wimps and scaremongers when they closed down in the face of anthrax. They might be reluctant to debate publicly what should happen if terrorists kill, maim, or infect them all. Ornstein said he thought the amendment could move forward if leaders such as Speaker Hastert (R-Ill.) and Minority Leader Gephardt (D-Mo.) forced the issue, but he wasn’t optimistic: "I would put it a little less delicately than Congressman Baird did. They just don’t particularly want to deal with this kind of thing."
Will they? Baird and Ornstein stressed the urgency of the situation, but conceded that if Congress refuses to act on the amendment before recess, it might be a good idea to appoint a panel to study the issue. That may not be a responsible solution, but even so there’s something oddly comforting in it. Washington stares into oblivion’s maw, then hands the vision off to a handy group of respected elders, who in turn produce a door-stop study. It’s business as usual, even when the business is apocalyptic.