Hearing of the Committee on Rules
Continuity of Congress: An Examination of the Existing Quorum Requirement and the Mass Incapacitation of Members"
TIME: 10:00 AM
ROOM:H-313, The Capitol
WITNESSES
Panel 1
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The Honorable Charles W. Johnson, Parliamentarian of the House, United States House of Representatives
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Mr. John Sullivan, Deputy Parliamentarian of the House, United States House of Representatives
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Mr. Tom Duncan, Deputy Parliamentarian of the House, United States House of Representatives
Panel 2
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The Honorable Walter Dellinger, Douglas B. Maggs Professor of Law, Duke University & Former Acting Solicitor General of the United States
Panel 3
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Dr. John Eisold, M.D., The Attending Physician to Congress & Rear Admiral, Medical Corps, United States Navy
OVERVIEW
On April 1, 2004, Committee on Rules Chairman David Dreier and Ranking Member Martin Frost announced a bipartisan inquiry into issues associated with the incapacitation of Members. As Chairman Dreier said, “It's possible that a terrorist attack could result in not just deaths, but incapacitation as well. How does this affect our quorum? What is the standard for incapacitation? Can adjustments to deal with these possibilities be made within our own rules?” Ranking Member Frost concurred in the need for a full inquiry when he said, “The issues surrounding the incapacitation of large numbers of Members in the House of Representatives present some of the thorniest questions the Congress must address. This is an issue never contemplated by the Framers, but it is an issue that is very relevant to the House today.” The Committee on Rules held an original jurisdiction hearing on these issues on April 29, 2004, at 10:00 a.m. in Room H-313 of the Capitol.
This hearing continues the in-depth review by the Committee on Rules of how to ensure the functioning of our representative government in the event of a catastrophe.
The U.S. Constitution requires that each body of the Congress have a quorum in order to conduct most business. Under House rules and House precedents, a quorum is defined as a majority of Members who are “chosen, sworn, and living.” With a full membership of 435 Members in the House, a quorum is 218. Current House rules allow the Speaker of the House to adjust the quorum downward if Members die or resign while in office. However, if a terrorist attack or other form of catastrophe left a large number of Members incapacitated, the number required for a quorum could not be lowered because the Members would still be alive. If a sufficiently large number of Members were incapacitated, the House could be unable to muster a quorum and thus unable to conduct business -- at precisely the time when the House will need to be able to act for the nation.
PURPOSE OF THE HEARING
One of the most important duties of the Congress is to assure continuing representation and Congressional operations for the American people during times of crisis. This hearing marks another important step forward in the U.S. House of Representative's Continuity of Congress efforts.
Since the terrorist attacks of 9/11/2001, the Congress has taken a number of actions to improve the continuity of Government operations, including its own, in the face of any catastrophe. These efforts began soon after 9/11 with a number of Committees of the House and Senate considering both how we can prevent future attacks and how the Congress itself would function if we cannot prevent them. For example, in February 2002, the Judiciary Subcommittee on the Constitution held a hearing on a constitutional amendment approach to deal with the deaths or incapacitations of 25% or more of the body by allowing the Governors of states to appoint Members to serve until special elections could be held.
One of the most important efforts by the House since 9/11 was the foundational work done by the bipartisan Cox-Frost task force during the middle and later part of the second session of the 107th Congress. Led by Republican Policy Committee Chairman Cox and then Democratic Caucus Chairman Frost, the task force laid the groundwork for many of the continuity issues that the House is acting upon during the 108th Congress. It drew from the experience of a number of Members including Committee on Rules Chairman Dreier and Representatives Chabot, Nadler, Ney, Hoyer, Vitter, Baird, Jackson-Lee, and Langevin.
Also during the close of the 107th Congress, the House and Senate enacted landmark legislation establishing a new Department of Homeland Security, the most significant governmental reorganization in over fifty years. Additionally, both chambers began the practice of adopting concurrent adjournment resolutions that would ensure the ability of House and Senate Leadership to convene the Congress in an alternative place or at an alternative time should it be in the public interest.
Since the convening of the 108th Congress, the rules of the House also have been amended to help assure the Continuity of Congress. These changes were based on recommendations made by the Cox-Frost task force and include: (1) requiring the Speaker to submit a list of designees to serve as Speaker pro tempore for the sole purpose of electing a new Speaker in the event of a vacancy in the Office of the Speaker (clause 8(b)(3) of rule I); (2) providing for Members to serve as Speaker pro tempore in the event of the incapacitation of the Speaker (clause 8(b)(3) of rule I); (3) enabling the Speaker to suspend business in the House by declaring an emergency recess when notified of an imminent threat to the safety of the House (clause 12(b) of rule I); (4) allowing for House Leadership to reconvene the House earlier than a previously appointed time (clause 12(c) of rule I); and (5) authorizing the Speaker to convene the House in an alternative place within the seat of Government (clause 12(d) of rule I).
On April 22, 2004, the House adopted, by a vote of 306-97, a legislative solution to deal with the deaths of large numbers of Members by requiring the States to conduct expedited special elections. In addition, the Chairman of the House Committee on the Judiciary has committed to consideration of a constitutional approach to these issues in the near future. The particular focus of this hearing is to assess the House's ability to function if many Members are alive but unable to carry out their duties because of serious injury.
The Framers of the Constitution provided the nation with a structural framework for conducting business in the Congress that includes a majority quorum requirement. Under longstanding House precedent, which parallels Senate practice, a quorum has been interpreted as a majority of the Members chosen, sworn, and living. Thus, in a House of 435 Members, a quorum can only be achieved with 218 living Members.
Under another longstanding House precedent, as codified recently in clause 5(c) of rule XX, after a recommendation to that effect by the Cox-Frost task force, the Speaker is empowered to adjust the whole number of the House (and concomitantly its quorum) upon the death or resignation of Members. To illustrate, if a catastrophe occurs and 225 Members of the House were found dead, the whole number of the House would be 210. The Speaker, under the Rules, would announce that fact to the House. The number required for a quorum would be 106. The House could proceed on that basis to conduct business.
However, a catastrophe resulting in the incapacitations, but not deaths, of large numbers of Members presents a different outcome. Since those incapacitated Members are still alive, they remain a part of the quorum calculation. Thus, if a catastrophe occurs and 225 Members are incapacitated, the whole number of the House would remain unchanged, i.e. 435. The number required for quorum would remain 218. But only 210 Members would be available to vote. The House could be unable to act if a roll call vote revealed the absence of enough Members to constitute a quorum for business.
As a threshold matter, since it is the Constitution that sets the majority quorum requirement, it may be relevant to consider whether amending the Constitution is necessary to deal with mass incapacitations. On the other hand, it is also probable that the Constitution was adopted to facilitate the functioning of Government, not to act as a stumbling block, in times of national crisis.
Alexander Hamilton commented on this concept in The Federalist Papers, #59, with respect to House elections. He said that “every government ought to contain in itself the means of its own preservation.” Additionally, Justice Joseph Story wrote in the Commentaries on the Constitution of the United States that the Congress, in representing the entire nation, must be able to exercise certain inherent powers to deal with unforeseen circumstances which could threaten the continuity of its operations and the safety of the nation. See Commentaries on the Constitution of the United States, Volume II, §842 (1970).
In that light, the Committee on Rules majority staff has prepared a discussion draft for a proposed rules change to address the mass incapacitation problem. However, we want to make clear that the hearing on April 29th is an oversight hearing, and there will be no formal mark up of the proposed draft. Rather, the discussion draft may facilitate the Committee's discussions on these matters. Additionally, it should be noted that this language was based on an earlier Cox-Frost discussion proposal.
In summary, the discussion draft does not define incapacitation itself; rather, it addresses the question for the House--how will the House be able to act if there are large numbers of Members incapacitated? The discussion draft suggests that the inability of Members to respond to multiple and lengthy calls of the House when coupled with measures designed to confirm to the Speaker that a catastrophe has occurred, may allow for a House to proceed with a provisional quorum. This temporary, provisional quorum, existing only in a time of catastrophe, would consist of a majority of those able to respond to the calls of the House.
Finally, the Committee expects that the hearing will include time for the witnesses to be thoroughly questioned by Committee Members, after the witnesses present overviews on issues such as:
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How the House previously has dealt with the incapacitation of Members;
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Precedents, House Rules, and laws affecting the Continuity of Congress;
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Mass incapacitation and its effects on quorum;
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Constitutional principles and relevant cases affecting the ability of the Congress to ensure that it can act in the face of any catastrophe;
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Role and resources of the Attending Physician to Congress; and
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Plans and procedures for dealing with a catastrophe affecting the Congress.
