Cornyn Introduces Continuity of Congress Amendment
By Jim Hauser
Talon News
November 6, 2003

Sen. John Cornyn (R-TX), chairman of the Judiciary Committee's Subcommittee on the Constitution, introduced a constitutional amendment and implementing legislation Wednesday to provide for the continuity of Congress. The measure is intended to ensure that vacancies in Congress, specifically the House, would be quickly filled in the event of a large-scale disaster such as the terrorist attacks on September 11, 2001.

The Constitution spells out a specific order of succession for the presidency and allows state governors to make temporary appointments to the Senate. The Constitution only allows vacancies in the House of Representatives to be filled by special elections which can typically take months to conduct, potentially leaving Congress without the quorum required to pass legislation.

"Although Congress is not in session year-round, the ability to convene immediately in a time of crisis cannot be understated," said Cornyn in a press release. "Three days after 9/11, Congress appropriated $40 billion in emergency funds and approved legislation supporting the use of military force. And a week later, Congress enacted further legislation to stabilize and secure the economy and airports, and to compensate the victims of the 9/11 attacks."

Cornyn's implementing legislation would allow the states to choose alternative methods for quickly filling vacancies. One method would allow interim appointments by the governors or state legislatures. Another possibility would allow emergency interim appointments to be made based on a list of succession that is pre-determined by members of Congress. A third solution would require that special elections be held within days or weeks instead of months.

Cornyn was quick to point out that any emergency interim appointments to fill vacancies in the House would only be temporary. The legislation would require that any such appointments would be followed by elections within a 120 day time limit. Vacancies created by the incapacitation of a member could be reclaimed by that member immediately following recovery.

On three occasions during the Cold War, the Senate passed constitutional amendments to allow temporary appointments to the House, but the measures did not clear the House. Following September 11, 2001, Rep. Brian Baird (D-WA) and Sen. Arlen Specter (R-PA) each introduced constitutional amendments to allow governors to make temporary appointments to the House in the case of mass vacancies.

John Fortier of the American Enterprise Institute points out that the biggest problem with Cornyn's amendment proposal is rooted in the Constitution itself. In a recent article titled "The Continuity of Congress," Fortier notes that "when vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies; provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."

"By contrast, the Constitution makes no provision for temporary appointments in the House," said Fortier. "All vacancies are filled by special election. Article I, Sec. 2, cl.. 4 reads 'when vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies.'"

A group calling itself the Committee to Preserve an Elected Congress, headed by conservative columnist Phyllis Schlafly, is strongly opposed to any measure that would allow the appointments of House members. Schlafly, in a recent statement, said the group was formed "to combat the surprising attempt by men who should know better to change the U.S. House of Representatives from an elective to an appointive body in the event of a national emergency."

In a World Net Daily article that appeared in June, Schlafly was quoted as saying, "[T]he direct election of Members of the House accountable to 'we the people' is the centerpiece of the American constitutional system and has been a major factor in preserving our American liberties."

Sen. Cornyn acknowledged that some disagreement remains on "what form the solution should take."

"Some members of Congress desire emergency interim appointments, while other members believe that expedited special elections are sufficient," Cornyn said. "My proposal specifically refrains from choosing sides in this debate. The constitutional amendment simply defers the question to Congress, and the implementing legislation simply defers the question to the states."