Hearings of the
Subcommittee on Technology & the House
Committee on Rules
Wednesday, June 4, 2003
The subcommittee met, pursuant to call, at 10:00 a.m., in Room H-313, The Capitol, Hon. John Linder [chairman of the subcommittee] presiding.
Present: Representatives Linder, Myrick, Sessions, Dreier, Hastings of Florida, and McGovern.
Also Present: Representative Hastings of Washington and Diaz-Balart.
Mr. Linder. The meeting will come to order. I am pleased to convene this hearing of the Subcommittee on Technology and the House. We are here to receive testimony from the sponsors of the proposal to establish a joint committee to review House and Senate rules, joint rules, and additional issues of importance pertaining to the continuity and security of congressional operations.
This subcommittee in the past has held hearings on the deliberative nature of the Congress, congressional oversight of the executive branch, and issues of the internal procedures affecting legislative cooperation. While these previous hearings all focused on processes and procedures of the House of Representatives, any review of our parliamentary rules and procedures must now be evaluated in a post-September 11 atmosphere that incorporates once implausible circumstances under how the legislative branch will now operate.
Following the horrendous acts of terrorism that were perpetrated on the American people on September 11, America demonstrated its commitment to ensure that terrorism would not undermine liberty and freedom. Our Nation also realized that we had entered a new era in which liberty and freedom would now be under attack from a new kind of enemy and that we would have an obligation to act for the protection of our citizens and institutions that govern them.
John Jay in Federalist No. 3 stated that "Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be the first." In terms of providing for the safety of the Nation, this obligation must include continuity of operations. The executive branch has made contingency plans so that in a dire emergency it would be able to continue functioning on behalf of the American people. This is a prudent thing to do. The House in its opening day rules package included significant positive rules changes stemming from the recommendations made by the bipartisan Continuity of Congress Task Force. These first efforts were designed to help ensure that appropriate institutional mechanisms were in place to respond to an emergency situation. The legislative branch is now continuing to devote its time and energy in a joint effort between the two Chambers to make a contingency plan for the continuity of its own operations in the event of a catastrophic disaster.
It is imperative that the Federal Government be in the most effective position to protect the American public, and the most visible sign of our Nation meeting this obligation has revealed itself in our efforts to find and eliminate enemies at home and abroad. But it is also our obligation at home to ensure the continuity of our representational government. With that objective as our goal, this subcommittee and the Committee on Rules intend to assess the rules, joint rules, and processes and procedures to ensure that they have been adapted to deal with any contingency that could affect the continuity and security of congressional operations during a time of crisis.
The Constitution of the United States declares that the legislative branch has the responsibility to appropriate funds to keep the government running properly, declare war against hostile adversaries, elect the Speaker of the House, confirm Cabinet nominees and Supreme Court nominees. These comprise just a few of the powers within the framework of our representative government that has worked so well for over 200 years. But in light of the critical nature of these considerable responsibilities, the time is right to reevaluate how procedural requirements could affect the manner in which these legislative duties would be conducted in the House and Senate in an emergency situation.
The Rules Committee members before us today, the chairman of the Committee on Rules and our ranking minority member, will present the subcommittee with a proposal that could put the wheels in motion for an internal assessment to help ensure the continuity and security of congressional operations. This proposal for a joint committee represents a serious step in the right direction for modernizing congressional procedures and elevating parliamentary preparedness and having the House and Senate think about what needs to be done to ensure the legislative branch's continued viability in the face of any emergency situation.
I would now like to recognize the ranking member of the subcommittee, Mr. McGovern, for any comments.
Mr. McGovern. I thank the chairman for his opening statement, and I want to associate myself with his remarks. A lot of us never thought we would be having to deal with this issue and in the aftermath of September 11, we are all of a sudden faced with questions about what if Congress were impacted very directly by a terrorist attack and what would we do if Members of Congress were unable to serve and how would the government function, I mean all of these questions that people really do not and hope will never have to be dealt with, but nonetheless, given the realities of the world that we live in, are very, very important questions and they need to be dealt with and they should be dealt with well in advance of a catastrophe.
It is amazing to me when we think about the history of this country that these issues haven't already been dealt with. I know in previous Congresses there has been some discussion about some of these matters, but there is no blueprint in place, there is no position paper in place that details very specifically with what needs to happen.
There are constitutional issues that need to be grappled with, and again this is a very serious matter. I think it is very, very appropriate that this committee, this subcommittee is having hearings on this issue, and I think it is also very appropriate that the distinguished chairman of the Rules Committee, Mr. Dreier, and our distinguished ranking member, Mr. Frost, are here to testify on behalf of legislation that would call for the creation of a small committee that could help make recommendations and could help establish some procedures, and to be able to take testimony from experts and scholars and constitutional experts to be able to figure out how we should proceed.
So I commend the chairman for holding these hearings, and I look forward to the testimony and I look forward to working with all members of this committee as we move forward on this issue.
Mr. Linder. Thank you.
Mrs. Myrick.
Mrs. Myrick. I would like to thank you and associate myself with your comments and thank the two gentlemen in front of us, because I am very interested in what you have to say and I think it is extremely important that we do this now, as Mr. McGovern said, instead of later.
Mr. Hastings of Florida. Mr. Chairman, I would like to make a unanimous consent request and that is with reference to the legislation; I believe that there is unanimity in the Rules Committee and I would ask unanimous consent to have my name placed as a cosponsor. I would urge that you do likewise, Mr. Chairman, and be next in line, with appropriate understandings of the rest of the membership in the hopes that all of us will become immediate cosponsors.
Mr. Linder. I have no objection to that.
Do the authors have any objection?
Before introducing the witnesses, I do want to mention that information and background on this joint committee proposal will be available in the very near future on the Rules Committee website at www.house.gov/rules.
I would now like to recognize the chairman of the Rules Committee, the gentleman from California, Mr. Dreier.
STATEMENT OF THE HON. DAVID DREIER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Dreier. Thank you very much, Chairman Linder, and Mr. McGovern, Mr. Hastings, Mrs. Myrick, Mr. Hastings, and now Mr. Diaz-Balart. It is a privilege for me to be here with my friend and colleague, Mr. Frost, on a very important issue.
I want to begin, Mr. Chairman, by congratulating you, because it is very rare that John Jay is quoted. He wrote the fewest of the Federalist Papers, and Madison is the one first quoted because he authored the highest number of papers, and then Alexander Hamilton. And I think that it is very prescient that John Jay would talk about this issue of safety. Thomas Jefferson referred to it several times early on and I do know that Madison did. But I appreciate hearing that because I had forgotten Jay's comments on it. And I do think that it underscores, in light of the fact that the Federalist Papers, under the pseudonym of Publius, were put together with the goal of ensuring that we would see the justification for the Constitution, and this is the first branch of government. We are Article I.
So I just want to compliment you. I know you probably spent weeks digging through the Federalists before you came up with Mr. Jay's comments, so I just want to thank you for that.
I also want to begin, I have a prepared statement, and I very rarely use a prepared statement. I am going to do that today because this is such an important, weighty issue and there are a number of very important issues that need to be addressed and I plan to do that. But I want to also praise our colleague, Mr. Cox, who along with Mr. Frost, did spend some time early in the last Congress shortly after September 11 looking at this issue of continuity, and we have now gone through obviously the aftermath of September 11 and we are, having dealt with both Afghanistan and Iraq, we are now focusing, I think, with this resolution, H.Con.Res. 190, on the very important issue of focusing on this question in a bicameral way. Because when we think back to September 11, we know the challenge, and then we, of course, in the case of anthrax, we had some confused communication as to which entity was going to stay in operation. I think that the work of this proposed joint committee can go a long way towards mitigating some of those challenges that we have had in the past.
So let me go through my prepared statement, and then Mr. Frost will, and I hope we will have an opportunity for a discussion on this.
Mr. Chairman, only a few times in the past have the House and Senate established bipartisan, bicameral panels to review the structure and functioning of the United States Congress. Today's hearing is an important step forward because it begins the process for fulfilling one of our most important duties: assuring continuing representation and congressional operations for the American people during times of crisis. Since the terrorist attacks of September 11, 2001, our perception of national priorities has obviously changed dramatically. Terrorist attacks on our homeland, the anthrax-laced letters still under investigation introduced a new sense of vulnerability to Americans and gave Congress a new imperative to act for the protection of the American people.
Congress' initial response to the acts of terrorism included passage of landmark legislation establishing a new Department of Homeland Security, the most significant governmental reorganization in a half century. When the 108th Congress convened, the House created the Select Committee on Homeland Security to oversee the work of the new Department. In addition, the House and Senate Appropriations Committees have reassigned their subcommittee jurisdictions to create Subcommittees for Homeland Security.
Both Chambers also adopted, Mr. Chairman, H.Con.Res. 1, which states that the Speaker and the Senate Majority Leader or their designees, in consultation with the respective minority leaders, and I quote, "may notify the Members of the House and Senate respectively to assemble at a place outside of the District of Columbia whenever, in their opinion, the public interest shall warrant it."
The purpose of that resolution is to ensure that someone in each Chamber has the authority to convene the House or Senate outside of the District of Columbia in the event of a national catastrophe, including one that kills or incapacitates the congressional leadership.
In sum, Mr. Chairman, the response of the President and the Congress to terrorism has been substantial and positive. Together, we have provided public officials with a framework for preserving the functions of government, while helping to assure the general public that representative government will continue to function despite terrorist actions. But more does need to be done, and that is why we are here.
While the power of the presidency has been transferred in critical situations on numerous occasions ranging from war to assassination to impeachment, only two or three times in our Nation's history have crises tested the ability of the Congress to assemble and conduct its business under extreme circumstances. The fact is we are still unsure of our ability to act decisively, to maintain homeland security, while preserving the democratic and representative fabric of our society. Accordingly, Congress should undertake a thorough review of House and Senate rules, joint rules, and other related matters, to ensure the functioning of Congress in the event of any catastrophe.
The two Chambers, of course, do have formal and informal devices to bring Representatives and Senators together, such as conference committees and bicameral leadership meetings. However, these mechanisms for bicameral coordination are typically ad hoc and utilized on an occasional basis, often to address legislative or political dynamics of the moment. Congress has no formal mechanisms for addressing joint emergency procedures in the aftermath of a catastrophic event.
The passage of H.Con.Res. 190 would inaugurate a special joint committee, a study of ways to ensure that the structures, procedures, and lines of communication between the two Chambers are effectively organized and coordinated so that the legislative branch can fulfill its important constitutional duties during times of crisis.
Specifically, the concurrent resolution establishes a committee of 20 members, equally divided by Chamber and party. The Speaker and the Senate Majority Leader would appoint the cochairmen of the joint committee, as well as the other members, after consultation with the respective minority leaders. The joint committee is to issue an interim report by January 31 of 2004 and a final report by May 31 of 2004.
Now, it is not unusual for Congress to create joint committees to inquire into significant matters of legislative organization and operations. By their very nature, joint panels bring together an array of legislative expertise and experience found in few other congressional settings.
On three prior occasions Congress has established bipartisan, bicameral panels to conduct comprehensive reviews of its operations. Among the topics considered by these joint panels were the committee system, floor deliberation, and scheduling and cooperation between the House and the Senate. These reviews included the 1945 Joint Committee on the Organization of Congress, which was formed in part because of the enormous changes underway at that time: President Roosevelt's New Deal policies and the emerging global role of the United States following World War II. Many of this joint committee's recommendations were incorporated in the 1946 Legislative Reorganization Act.
The second, the 1965 Joint Committee on the Organization of Congress. Now, its mandate was to make recommendations for strengthening congressional operations and improving Congress' relationship with the other branches of government. Many of its recommendations were subsequently included in the Legislative Reorganization Act of 1970.
And then, my favorite, the 1993 Joint Committee on the Organization of Congress. It says here I was the cochairman of that committee, so I guess I was. This joint committee was formed in part to address concerns inside and outside the House and Senate about the effectiveness and public perception of the Congress. The 1993 joint committee held 6 months of hearings, organized four symposia on relevant topics, collected extensive survey data from members and staff, and reviewed over 1,000 letters from citizens. We took a huge amount of input. In fact, my recollection is that we had between like 243 witnesses and I know we had 37 hearings. It was a very exhausting process.
Then, although there were real challenges and a lot has been written about what took place in the aftermath of that, the 103d Congress ultimately took no action on it, and I have talked about it here a million times and on the floor. We were proud to take what was put together in that bipartisan package in 1993 that emerged and implement much of it in 199 - -- well, it would have been January of 1995, when we implemented our opening day rules package on the House floor when we won the majority.
In addition to these comprehensive reviews, Congress also created the Joint Study Committee on Budget Control in 1972. Its review of congressional budgetary processes laid the groundwork for what eventually became the Congressional Budget and Impoundment Control Act of 1974.
Now that I have reviewed the role of these prior joint committees, I would like to tell you more about the purposes and the scope of the joint committee proposal that Mr. Frost and I and now every member of this subcommittee, I don't think anybody will protest; Mr. Hastings called for all of us being supporters of this resolution and in fact it is our hope that we do this by unanimous consent when this committee reports it out later.
But I would like to go through some of those goals that we have. The joint committee proposed by the legislation is an appropriate mechanism to conduct a systematic review of what congressional procedures, coordination, devices, and leadership are necessary and appropriate to handle national crises.
The primary goals of the joint committee are twofold: First, to preserve the coequal stature of the legislative branch so that our representative form of government can perform its constitutional duties during emergencies; and, two, to promote a bipartisan and bicameral dialogue about the necessity of rules, joint rules, or other processes to permit timely consideration of vital homeland security matters during times of crisis.
Among the specific topics that the joint committee would consider are continuity of Congress, joint rules and procedures for consideration of homeland security legislation during times of national crisis. Let me take a moment to talk about each of these, Mr. Chairman.
On September 11, a group of heroes on board Flight 93 called out, "Let's roll." They stormed the cockpit and kept the al Qaeda terrorists from crashing a jet plane into this building. While that attack was thwarted, the threat to Congress and its leadership, who are in the line of presidential succession, remains very real.
Al Qaeda's failed attempt highlights the importance of planning for the continuity of Congress in the event of a catastrophe. If a major terrorist attack succeeded in killing or incapacitating a large number of Representatives or Senators, it could eliminate or restrict the ability of the Congress to act at the very time in which the Nation needs its lawmakers the most.
These examples are but a few of the many issues which underscore the need for this joint committee. It is of great importance that Congress examine its need for extraordinary rules, procedures and processes to ensure its continuity and survival in a time of national emergency.
To be sure, potential procedural transformations suggested by such a review could be major or minor. However, let me caution those who favor a quick passage of a constitutional amendment on quorums and the replacement of members. I have discussed with my distinguished former colleague, Robert Michel, who was the Republican leader and currently serves as a member of the Continuity of Government Commission, and we have discussed this, and I very, very strongly believe that any amendment to the U.S. constitution should be an absolute last resort.
In my view, a constitutional amendment would be premature until Congress determines that there are no other ways to resolve these issues through procedures, rules, joint rules, or public laws. Moreover, I am concerned about the length of time it would take to ratify a constitutional amendment, given the threats that we face. I am clearly on record in opposition to constitutional amendments, as I am one of the few Republicans who yesterday voted against the flag-burning amendment after we reported it, as you all know, out of this committee. I am very, very hesitant to proceed with any amendment to the Constitution even dealing with an issue like this.
From the very first Congress, joint rules have helped govern House and Senate procedures in matters requiring concurrent action. Although the formal adoption of joint rules lapsed in the 1870s because of a dispute involving the counting of electoral ballots, they continue to facilitate much of the work we do today. The very first joint rule, in fact, continues to be very relevant. This joint rule adopted in 1789 addressed the need for conference committees between the House and the Senate. Fortunately, conference committees continue to be available to us to expedite resolution of our differences with our colleagues in the Senate.
Other joint rules that continue in the customary practice of today's Congress include the mechanisms by which "the papers" of any legislation are transmitted between the both Houses and the process for enrollment of bills. However, beyond these more prosaic elements of bicameral cooperation, joint rules in the past have assisted the Congress during times of national emergency.
For example, a joint rule was established during the Civil War to allow for the immediate and secret consideration of measures at the request of President Lincoln.
More recently, joint rules have been incorporated into key resolutions and important statutes passed by the Congress. The House and Senate adopt a joint rule each time they pass the budget resolution. A joint rule in the House and Senate also is adopted with the passage of each concurrent resolution to adjourn the Congress for more than 3 days.
The joint committee, if established, should consider whether joint rules or other joint mechanisms can be useful during times of crisis to promote bicameral coordination, communication, and consultation.
While a framework for the executive branch's response to terrorism has been created with the Department of Homeland Security legislation and the enhancement of other measures, many important things need to be reviewed with respect to how the Congress would deal with homeland security issues during a catastrophe.
The American people do not consider the rules and procedures of the Congress foremost among the factors essential to their security; rather, they simply expect that the Congress will have the foresight to plan and the ability to act decisively in the face of any crisis.
Instead of risking that previously unanticipated gaps or procedural obstacles and bicameral relationships might impede decisive yet responsible action, we should begin a careful study of House and Senate rules and procedures to ensure that we are prepared to act quickly in any emergency.
For example, if an attack prevents Congress from enacting all or some of the appropriations measures by the start of the fiscal year, we may want to consider whether it makes sense to have a short-term automatic funding mechanism for government agencies. Similarly, if Congress would need to act from an undisclosed location, we might want to ensure in advance special procedures are in place to facilitate crafting of emergency legislation.
Finally, while the Senate as a continuing body has rules that endure from one Congress to the next unless they are changed or modified, the House has to adopt its rules anew at the start of each new Congress. This requirement may present issues that should be considered by the joint committee. If a catastrophe occurs prior to the convening of a new Congress, the House might not be able to organize, vote, or to adopt Rules of Procedure for some time.
These are but a few of the issues that the joint committee could consider if it is established. I am not wedded to any specific ideas or solutions, although I have stated clearly I am very concerned about moving ahead with a constitutional amendment. But I am committed to working with all Members, regardless of party affiliation, to assess and, if appropriate, to implement the proper mechanisms necessary to assure continuing representation and congressional operations for the American people.
In conclusion, the House and Senate are distinctive bodies as the framers intended. They differ in size, constituency, term of office, procedural rules, constitutional prerogatives, and more. Under the Constitution, Mr. Chairman, each Chamber has the absolute right to establish its own rules. The joint committee, if established, would not affect this constitutional prerogative of each Chamber. However, I believe it is vitally important for the general welfare of our Nation that the House and Senate can work together in an effective and decisive manner during times of catastrophe when even the existence of the national government may be at stake. H.Con.Res. 190 is an important step toward achieving that goal. This effort can only succeed if it is both bicameral and bipartisan.
Let me say that I look forward to working with Members and leaders in each Chamber to ensure its passage. I appreciate the work that Chairman Linder and also that Chairman Diaz-Balart are doing on this issue of homeland security as they both share very important subcommittees dealing with this question.
I appreciate the forbearance of this subcommittee to have all of you sit here and listen to prepared statements. I don't have the patience to listen to prepared statements read too well, but I do think this is such an important and very weighty issue and there are a number of issues that I look forward to getting into. I thank you very much for having me.
Mr. Linder. I agree with the weighty necessity of the issues and I appreciate your statement and I thank the chairman.
Mr. Frost.
STATEMENT OF THE HON. MARTIN FROST, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. Frost. Mr. Chairman, I have a formal statement which I will refer to in a little bit, but I would like to make some introductory comments just as the chairman did.
Mr. Linder. Please do.
Mr. Frost. First of all, I would like to thank the Republican leadership of the House for being willing to take this matter on, both the leadership in the Senate and the House. You all are in charge. You did not have to take this on. I want to thank you as a member of the minority because I think this is a very important issue.
Secondly, I was in the Capitol on September 11 in Dick Gephardt's office with a number of Members of the leadership on our side. I recall that Speaker Hastert was in his office in the Capitol on that day.
Mr. Dreier. I was right here.
Mr. Frost. And had that plane not been brought down, that fourth plane in Pennsylvania, a number of us in this room today might not be here. So this is a matter of personal interest as well as institutional interest.
I have a slightly different view than Chairman Dreier on the scope of this committee. I think there are not only rules issues that must be addressed, but there are larger issues that must be addressed, and Chairman Cox and I attempted to address some of those issues in the task force that met during the last Congress. We reviewed a variety of alternatives dealing with House rules to deal with the issue of the replacement of Members. We did not come to any conclusion; however, my personal view is that the only solution to this issue is a constitutional amendment. And while I look forward to assuming that Chairman Dreier and I are both on this joint committee, I look forward to examining all of those issues again as we did during the last Congress, the different approaches of addressing this issue through changes in House rules. I believe we will ultimately come to the conclusion that there is only one way to assure continuity of the House of Representatives, and that will be by amending the Constitution.
Also, there is another significant issue that our task force examined but did not come to any conclusion on, and that was the Presidential Succession Act, because under the current Presidential Succession Act, the Speaker of the House and the President pro tempore of the Senate are third and fourth in line to the presidency. If both of those individuals are killed and if the President and the Vice President should be killed, then under the current Presidential Succession Act, a member of the Cabinet becomes President. However, under the act as currently written, a subsequently elected Speaker would succeed that Cabinet member and, in fact, would bump him from the position, and I do not believe that is in the interest of the country. Once someone becomes President in the time of a national emergency, that person should continue and should not be subject to being bumped from his position by a subsequently elected Speaker of the House of Representatives who could be elected by a very small number of Members of the House, if you only had a small number surviving.
So there are some very significant issues that this joint committee must examine in addition to simply a question of curing this problem through some changes in the House rules.
Mr. Chairman and Mr. McGovern, I will proceed with my formal statement.
I appreciate you calling this meeting of the subcommittee today so that we can begin the process of creating a Joint Committee on the Continuity of Congress. I am pleased to joint with Chairman Dreier in sponsoring this resolution, because I believe this is a very serious matter. In the event that a catastrophic attack was successfully launched against the Capitol or any other location where a large number of members of the House of Representatives were gathered, the ability to assure the continuity of our government could affect the functioning of the government, but well also could affect the stability of the United States and its citizens.
September 11, 2001 made it clear just how vulnerable this country is to terrorist attacks. In the ensuing months, there have been significant changes to the security procedures in the Capitol complex, all in the hope that the increased security will protect the staff and Members who work here, as well as the thousands of visitors who every year come to our offices and to the Capitol itself. But in spite of this increased security we are still vulnerable, if only because this building is seen as a symbol and seat of our democracy to the rest of the world.
That means we have to prepare for the unthinkable. We have to answer the question: How would the House function in the aftermath of such an attack?
Last May, Speaker Hastert and Minority Leader Gephardt asked Chris Cox and me to cochair a bipartisan Continuity of Congress Working Group, which was charged with the responsibility of finding ways that the legislative branch, specifically the House of Representatives, could continue to function in the event that a terrorist attack or a catastrophe might kill or incapacitate a large number of Members.
Over a period of 6 months, the working group held eight meetings. At those meetings we discussed, on a nonpartisan and collegial basis, the remedies that might exist or would need to be created to allow the House to continue to function in such a situation. These discussions were substantive. We called on the Parliamentarian of the House, Charles Johnson, and his staff or former staff, including the committee's current Staff Director, Mr. Pitts, on the Congressional Research Service, other members and outside experts on constitutional law and the functioning of the Congress. We reviewed proposed constitutional amendments, an approach as I indicated previously which I personally support. We did not, however, recommend any constitutional changes, because we felt it was necessary for the Judiciary Committee, the committee of jurisdiction, to be further consulted on the complex issues related to amending the Constitution to provide for the continuity of Congress. And I would hope that in constituting this joint committee that the Speaker and the minority leader would include within its membership members of the House Judiciary Committee, because ultimately they have jurisdiction over some very important matters that will be considered.
We did recommend three simple changes to the Rules of the House that will go a long way to resolving some of the problems relating to a diminished number of Representatives who might present themselves to the Speaker following a catastrophic event that were included in the rules package of the 108th Congress, as Chairman Dreier previously mentioned.
Those amendments provided, one, codification to the process by which the Speaker certifies the death of a House Member in order to reduce the whole number of the House for purposes of establishing a quorum; two, allowing the Speaker to accelerate or postpone the convening of the House in the event of a declared emergency; and three, authorization of an individual other than the Speaker to reconvene the House in the event of a catastrophe resulting in the death of the Speaker.
We understood that the complexity of the issues surrounding the continued functioning of the House in such an instance required more study and more substantive discussion. Every time we thought we had come to the end of the discussion of what if's, we found one more question that led us to rethink many of the conclusions we had reached. The fact is there are no easy answers, because we are talking about the possibility of an event that the Founding Fathers could never have imagined. They created the House of Representatives as the arm of the government that is closest to the people and, in doing so, they provided for direct election. To change that is an undoing of over 200 years of history and precedent, and to do so requires careful and thoughtful discussion and deliberation.
The joint committee we have proposed -- let me interject at this point. There is an historical aberration that provides for appointment of Senators, but not appointment of House Members in the event of the death of either. The historical aberration is that the United States Senate was originally appointed by legislators, elected. That was never in the Constitution, of course, for Members of the House. So there was, at the beginning of our history, there was a procedure for selection of Senators in a method other than direct election. Only when our Constitution was amended did we provide for the direct election of the United States Senators and, of course, there was never a procedure for selection of House Members in any way, other than by direct election. But I would suggest that we are now to the point where we should actively consider that.
The joint committee we have proposed will continue a discussion of the Cox-Frost working group. We have included the Senate in this resolution in order to assure that any changes we make will mesh with the rules and regulations of the Senate. This is about continuity of government, not just the House. I believe the House's ability to reconstitute itself is the thorniest problem in this mix, but it is also important that what we do is coordinated with the Senate to ensure that there will indeed be continuity of Congress.
In closing, I would like to add that this is not a partisan issue. This is an issue that affects each and every American and should be handled in a serious way, a way that avoids partisan rancor. We did that last year and I pledge my participation in this joint committee if the House and Senate agree to create it and if I am selected to it, I will participate as an American who wishes to ensure that our democracy, the beacon of freedom to the rest of the world, will continue to function effectively on behalf of the American people.
Mr. Chairman, again, I would like to thank the leadership in your party for being willing to take this on. It would not have happened had your party not made the decision to proceed forward, and in doing so I would urge, as I have said earlier in my statement, that the deliberations of this joint committee be as broad as possible and not be so limited that the joint committee cannot address the real problems. I thank you.
Mr. Linder. I thank you, Mr. Frost.
I would like to ask you, and both of you touched on this, do you think this joint committee ought to confine itself to continuation issues as broad as it can go, or other issues? For example, you talked about the Presidential Act, you talked about replacing Members. Would you think its scope ought to be narrowed to continuation of the Congress and replacing the President, Mr. Chairman?
Mr. Dreier. Well, thank you for that, Mr. Chairman. There are a lot of issues that obviously have not been addressed in a long period of time and many issues which have never been addressed. We all believed that we were immune to any kind of attacks. President Bush has pointed out the Atlantic and the Pacific protected us. There was a sense that we couldn't be touched. And our Nation still faces the threat of attack. We all know that as we look at these alerts.
So it seems to me that we are moving into such uncharted waters that it is important for us to be able to have the opportunity to look broadly at these issues. Again, it has been exactly a decade since we had our Joint Committee on the Organization of Congress, and that is why I thought over the past -- I mean I have been giving a great deal of thought to this whole issue before introducing this. And I began talking with others about this question, and I think that this will open the door for us to broadly look at other issues. I don't want to say exactly what they are, because no one knows today exactly what they are. But I do think the scope should be such that we are able to ensure that our deliberative representative form of government is able to proceed.
I don't want to get into a debate with Martin now on this, but I will point to Article I, section 4 of the Constitution, which very clearly outlines our responsibility. And the interesting thing is that while the Constitution did expand to the people, direct election of Members of the other body, the proposals for a constitutional amendment on this issue would actually take a retrograde step on the issue of direct election, recognizing the fact that the United States House of Representatives, what is known as the people's House, in fact -- I mean we hold the only office, the only Federal office that we have to be elected to. You can be appointed to be Vice President, President of the Senate, but the House of Representatives has always stood for election. I think that is a very important uniqueness that we have, and that is why I am concerned about it. I do believe that Article I, section 4, does provide for us opportunities to address that question.
So I think that we are not going to resolve this issue here today. This is something that I hope if the joint committee is put into place it will address, but I do believe we should have a lot of latitude.
Mr. Linder. Mr. Frost.
Mr. Frost. Let me take several pieces of this. During a consideration by our task force last year, we were advised, and I believe that the law is, that a quorum of the House is a majority of those sworn and living, sworn into office and living at the time. If there were only 5 Members remaining after an attack, a quorum of the House would be 3, and that is why this is an extraordinary situation, and that is why we need to look at the way to -- the best way to immediately replace Members in the event that something like that happened, and that is why under only very unusual circumstances would I support a constitutional amendment permitting an appointment on a temporary basis until elections can be held. But that is something that we will debate as time goes on.
Going to your question directly in terms of the scope of this committee and what would happen to the product of this committee, I view this committee in a little more restricted way, and this is a role reversal for Chairman Dreier and me. I would view this in a more literal, restrictive way, that this committee should limit itself to continuity of the House and continuity of our government rather than reexamining all of the Rules of the House. I would say that it would be my expectation, and I assume the chairman would agree with me, that any work product of this joint committee regarding changes in House rules would then be referred to the House Rules Committee, because we retain original jurisdiction over the Rules of the House.
Mr. Dreier. Of course, absolutely.
Mr. Frost. So let's be clear about that. Any rules that we would seek to change then would have to go back to this committee. And that is why the Judiciary Committee is so important, because any matters that would be under the original jurisdiction of the Judiciary Committee, such as the Presidential Act, such as constitutional amendments would then have to go to the Judiciary Committee if they were to be recognized by this joint committee.
Mr. Dreier. Absolutely.
Mr. Linder. Mr. Frost, you talked about the question of the Speaker bumping a potential Cabinet member who has probably never been elected to anything.
Mr. Frost. That is right.
Mr. Linder. And I suspect that whomever is left standing, the first order of business would be to elect the Speaker momentarily. So my guess is that the Cabinet member might be there for 4 or 5 minutes.
Mr. Frost. Under the Presidential Succession Act, and this is an interesting subject, because there has actually been a Law Review article written on this. I don't remember the exact citation, but my staff can provide that because we looked at it last year during consideration of the task force. Even if a Speaker were to be elected or a Speaker were still living, the Speaker would have the option to decline the position of the President, and then later on reassert his position as President.
Let's say for sake of argument that only 5 Members survived and that for whatever reason we did not immediately meet and we did not immediately elect a new Speaker. And because of the emergency situation confronting the country, that the first in line, the Secretary of State, assuming that the Secretary of State was born in the United States and was eligible to be President, the Secretary of State would then be sworn in as President. And let's say the Congress didn't convene for a couple of weeks or for whatever period of time while we are trying to determine how many people were still alive and what the quorum really was, then to have a Congress convene a week or two later and say, well, Mr. Secretary of State, now President, sorry about that, you don't get to be President any more, we are going to elect a new Speaker and that person is going to be President, I think would interrupt the flow of government and would cause doubt around the world about who actually was the leader of the United States at this critical moment.
This is a very complicated issue. I don't want to go into all of it right now, but I think it is something that needs to be examined by this committee.
Mr. Dreier. We are all demonstrating the fact that there is a need for this joint committee, I think.
Mr. Linder. Thank you. Correct.
Mr. Chairman, prior to 1887, I think it was, there were a considerable number of rules between the House and the Senate which fell apart over the presidential contest. Do you anticipate that we might reengage some of that kind of cooperation, and that is what I mean in terms of scope?
Mr. Dreier. You know, I don't want to anticipate at this juncture exactly what we may or may not do. Obviously the focus of this joint committee will be, as Mr. Frost has said correctly, on continuity of government, it will be focusing on this institution, presidential succession, and that is the thrust. When I said that I would like it to be broad, obviously it all has to relate to the process of representative government. Whether we get to the reinstitution of some of those pre-1887 joint rules, you know, is a question that is out there. I don't know. I mean that is really not the raison d'etre for this joint committee. I mean our focus is going to be on this issue of continuity.
Mr. Frost. Mr. Chairman, if I could, I neglected to mention one thing in response to your question on the presidential succession issue. I think we all remember that on November 22, 1963, when President Kennedy was assassinated and Lyndon Johnson became the next President, he was advised and decided to take the oath of office at Love Field in Dallas before Air Force One took off on the flight back to Washington, D.C., so there would be the least amount of time in which there was not a President of the United States. And I think it is very important that whoever, if both the President and the Vice President were to be killed and if the Speaker and the President pro tem were to be killed, that no time should elapse in which there would be no leader of this country.
Mr. Linder. Thank you. Mr. McGovern.
Mr. McGovern. I don't have a question so much as just a comment. First, I want to thank both the chairman and the ranking member for their testimony. I mean a lot of the issues, a lot of the questions that have been raised are questions that we can deliberately try not to deal with, because you are assuming the what if's and the worst possible scenarios, and obviously none of them are pleasant but nonetheless I think it is very important that we address these issues forthrightly. So I am glad that this committee is moving forward.
Clearly there are a number of questions that you raise and there are probably a number of questions that we haven't even thought of that would come out of a joint discussion. And I am interested, too, to see how the question is dealt with that in a worst case scenario, where most of the House of Representatives is obliterated, how do you in fact ensure the continuity of government. When I speak to grade school kids or high schools, I always brag about the fact that I am proud to be a Member of the House of Representatives because you can only serve here if you are elected. You cannot be appointed. It is unique.
If a Senator dies he or she can be appointed by a Governor, and the President, the same thing, a Vice President. But if something happens to me, the only way I can be replaced is through a direct election of the people, and it takes a while to get a special election going, I think under the best cases maybe 3 or 4 months. But in a situation where there is chaos, and there probably would be if all of us were obliterated for whatever reason, it might even take longer. It just seems to me that that is a central issue that needs to be dealt with.
But I think it is incredibly important that this committee move forward, and I think that both the chairman and the ranking member seem to be in agreement that we should have kind of broad latitude within the framework of the continuity of government to discuss all of the different issues and all the different implications, be they constitutional amendments or rules changes, that we can implement amongst ourselves.
So I want to thank you for your testimony.
Mr. Dreier. If I could just comment on those comments. Thanks for those kind comments, Jim. I appreciate it. You raise this issue basically making the point that I did earlier about the fact that we are the only Federal officials who have to be elected, we are the only Federal elected officials who have to be elected and serve, because others can get there by appointment. And I do know this question of a special election is out there.
There are two other chairmen who obviously will play an important role in providing input, and I think Martin is right in saying there should be members of the Judiciary Committee who are on this joint committee, but Chairman Sensenbrenner and Chairman Ney will both be involved in this. I do know that there is talk of, in the wake of a catastrophe, in fact mandating on the States that there be special elections held within the short period of time, like a 21-day period of time. There is talk about these kinds of alternatives.
So again, getting back to Article I, section 4 of the Constitution, I think that in extraordinary circumstances we have statutorily the ability to put into place the mechanisms that could deal with this. But I think it is a very fair point that you raise.
Mr. Linder. Mr. Frost.
Mr. Frost. I would only point out that under current law each State determines the manner in which special elections are held.
Mr. Dreier. Right.
Mr. Frost. And that differs from State to State. And in my State of Texas, our former colleague, Mr. Combest, announced in January that he was resigning, and his successor was elected yesterday, yesterday, June the 3rd. So we had a period of 5 months between the time Mr. Combest announced that he was resigning, his resignation was not effective until the end of May, but he announced in January that he was resigning, and then under the law of Texas, we held a special election that included a runoff that was concluded yesterday.
Mr. Dreier. I understand that, and obviously what I am talking about here under Article I, section 4, is a catastrophic situation whereby the Federal Government -- all of the States do, as Martin said correctly, have a different structure for these special elections, but we are in a position where under extraordinary circumstances we would have the Federal Government basically mandate on the States a responsibility to hold these special elections so that their Representatives to the people's House could, in fact, serve.
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Mr. McGovern. I guess you have to define catastrophic so that everybody agrees. But the second thing too is assuming a very horrendous situation here it is conceivable that if you envision a situation where most of the Members of the House of Representatives were incapacitated or killed that there may be other terrorist attacks throughout the country. And I mean the situation nationwide might be pretty unstable. Again -- and this is something we have to discuss during these hearings that the committee would hold -- I mean it might be unreasonable to assume that everybody could move expeditiously and have a campaign or elect people in a way that was orderly and without disruption. But nonetheless, there are interesting issues and they are important issues, and I thank both the gentlemen for their testimony.
Mr. Linder. You find it incredible we are having -- the nature of this hearing today?
Mrs. Myrick. I thank you both for your thoughtful testimony because it raises a lot of questions. I think most of us really haven't sat and studied the issue like the two of you have and did last year as well. I know you don't support constitutional amendments. I have great hesitancy about constitutional amendments even though I voted for some, because I am really nervous about changing the Constitution. But by the same token, I wanted to ask Mr. Frost because you said you would like to see a constitutional amendment and I understand where you are coming from. That takes such a long period of time. Do you still look to actually changing House rules, doing anything that could be done in the meantime before you can actually get through the process?
Mr. Frost. Absolutely. You have to do everything you can under House rules, but I believe ultimately the Constitution needs to be amended. And the type of constitutional amendment I would envision would be to delegate to the House the authority in that respect that would provide for replacement Members. And it would take some time and we should do everything within our power to address this through House rules in the interim.
Mrs. Myrick. The other thing is that you mentioned you would like to see us look at the issue broadly, and I think it is very good because of all the issues that may come up once there is further discussion of this, but the way government works it is a pretty short time frame. You basically have a year for final reports. I don't know how much time they allow.
Mr. Dreier. I would just say again I harken to 1993, which was my experience in cochairing that effort because, as I said, we had such tremendous -- I mean 243 witnesses, 37 hearings we held. I mean it was a massive -- we had a retreat. We went to Annapolis and spent a whole weekend on this joint committee. That is the kind of stuff that doesn't happen often. And we had a lot of people, I mean an equal number of Senators and House Members that we spent a lot of time on, and we did that during the same period of time. What that means is a heavy workload for us. And as you know, we have lots of other responsibilities that we are dealing with. But I do think we have gotten to the point -- again, I mentioned September 11 and Afghanistan and Iraq, and we have gotten to the point where now is the time for us having gone through this. Thank God we have not had a terrorist attack on our soil since September 11, but in light of the fact that we are so fortunate that hasn't happened, I think we can soberly step back and take a period of time and really take on these responsibilities, and I am prepared to do it.
Mrs. Myrick. Thank you.
Mr. Linder. Mr. Hastings.
Mr. Hastings of Florida. Thank you very much, Mr. Chairman, for convening this hearing, and I thank the chairman and ranking member for their thoughtful testimony and the fact that this matter is being brought forward. I would like to take care of one housekeeping matter that I think is important, and that is the fact that this matter came up rather unexpectedly. David and Martin may very well have known and you, Mr. Chairman, but some of us did not. And I know there are several Members that have had thoughtful legislation that they introduced, and so I would request of you that the routine 5 days for revision and extension and allowing other Members to include testimony in what I perceive is this historic matter. Brian Baird is one that comes to mind that has spent a considerable amount of time on this. I tried to call Brian last night on this and I was unsuccessful. I would like to have any written statement that Brian would want to introduce into this particular record.
Mr. Dreier. If you would let me respond to that, Mr. Hastings. I very much appreciate you doing that. Seems to me, this has been the process that I really spent the last several months looking at, and I consulted with Mr. Frost on it. And the goal is when we put together -- I assume that with the strong bipartisan support that we are going to be able to get this thing through, that we will have a wonderful opportunity for Mr. Baird and any Member to participate and provide input to us as to what their thoughts are. So this is not seen in any way as preempting the opportunity for Members who have spent time in the past couple of years thinking about this issue.
Mr. Frost. If I would add, I personally visited with Mr. Baird with this proposal. He is aware of it and fully supports it.
Mr. Linder. Without objection, the record will be kept open for 5 days.
Mr. Hastings of Florida. The other matters that I wish to bring to your attention are rather routine. When I read the legislation, I was concerned about the one sentence -- not the sentence, so to speak, but the continuation of the sentence after House and Senate rules and joint rules and other matters, but both of you have addressed the other matters and so I kind of understand the broad ramification as my colleague Sue Myrick spoke of.
The other thing that concerned me is the gravity of the situation allows for expedition. While I appreciate what you said, Mr. Chairman, about backing up and taking a reflective view, which is always advisable, I was going to ask -- until I heard your testimony that you accelerate the time for the reporting to 6 months as opposed to a year, but it does seem to make sense that you go a year, so no need for that.
Mr. Dreier. I actually convinced you of something.
Mr. Hastings of Florida. Very often you do, I just don't say it. The problem is I don't convince you of nothing.
Mr. Dreier. That is a fair assessment.
Mr. Frost. Not that he can acknowledge.
Mr. Hastings of Florida. With that in mind, I am concerned with a rather mundane thing that I am sure you all have given thought to, and that is H.Con.Res. 190 will allow for all the things that the committee does and the report but all this stuff costs money. So is this going to require additional legislation or could you not have included an additional paragraph that would deal with the funding and appropriations and staffing and all of those?
Mr. Dreier. It is a very fair question and actually Mr. Frost raised that with me yesterday. And let me just say that as of right now, and in fact I was talking to Mr. Pitts last night about the tremendous workload that this committee has with the relatively small staff juxtaposed to the staffs of other committees, and everybody sitting around the edge of the room knows that very well, but even with that in mind, at this juncture we are planning to proceed with the present staffing arrangement that we have and then as we do get into these broader areas obviously it quite possibly could be something that we would address.
As you know, I am one, going back to that 1993 Joint Committee on the Organization of Congress, who has always been trying to focus on fewer rather than more committees and this is obviously a rather temporary thing. We have looked at the tremendous challenge of dealing with this Select Committee on Homeland Security, and so we will address this issue. We are going to proceed with the status quo as of right now, and then as we expand things as its necessary we will address it.
Mr. Frost. I do recall from many years ago when I served on House Administration that at that time committees were authorized to have consultants, not full-time staff members, but to employ consultants on particular projects, and that might be an area we might want to pursue with this joint committee because there may be some individuals with particular expertise that we might want to bring on on a temporary basis while we consider it.
Mr. Dreier. As I said, I think we will be open to any of those options that are out there, but, you know, again this is unchartered water for us. I think it would be impossible for us to say exactly what a staff should consist of or who should be on that staff beyond the wonderful people that work on both sides of the aisle.
Mr. Hastings of Florida. I think that is short-sighted. I think you can accumulate the necessary staff and this matter should be appropriately funded. You are dealing with one of the most significant historic changes that we are likely to undertake, and I don't think that the burdening of present staff or the staff of the constituted Members once they are selected would be appropriate for something of this kind. The writing of a report in and of itself of this significance will require skills.
Mr. Dreier. I appreciate your thoughts on that, Al, and I know you called me short-sighted, too.
Mr. Frost. I intend to take it up with the leadership on our side of the aisle and we will assume Mr. Dreier will do the same thing, and I have already communicated to our leadership my sense that we need some additional staff on this matter.
Mr. Hastings of Florida. Just very briefly by way of suggestion, once this does become law and it may be even before, where a lot of our information should come from is academia, we should also make certain through the Internet and the media, as the chairman had indicated, that this would be made available on the Web site of the Rules Committee. And just as a word regarding all of what happens in the horrible situations that we must contemplate, I view the American public as extremely resilient and notwithstanding the worst case scenarios, I am absolutely certain that that resiliency will cause us to be able to remedy the problem. This is a great first step notwithstanding the ultimate result.
Mr. Dreier. Let me express my appreciation for your thoughts and input on this, Al. It is very helpful. And to say again for me it is relatively recent for me to go back a decade and look at 1993. We brought some of the top academic minds into this. We then were -- I mean World Wide Web was not quite at its infancy. We were involved, as I said, getting a thousand letters from people around the country. So it is my hope if this legislation does in fact pass that we will be able to utilize some of the great things that we learned from that 1993 experience and really have a wide range of input from people.
So thanks for your recommendations.
Mr. McGovern. Along that line today Norm Ornstein and Tom Mann from the American Enterprise Institute are actually issuing a report on some of the things we are talking about here today, and they have been talking about this issue for quite some time and they are the type of people we would want to consult with, and I would ask unanimous consent to insert in the record an article that Norm Ornstein wrote on October 4, 2001 in Roll Call called "What if Congress Were Obliterated?"
Mr. Linder. Without objection.
[The information follows:]
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. Mr. Dreier. Those two individuals, Norm Ornstein and Tom Mann, worked very closely with me a decade ago and we continue to stay in touch, and they are two of the great minds and there will be many others who will be able to participate in this process as well.
Mr. Linder. Mr. Sessions.
Mr. Sessions. Thank you, Chairman. The opportunity to have both of you appear before your committee today is very important I think not only to the substance of this committee but also the House of Representatives. I have several thoughts that I am really not asking you to necessarily comment on but I believe should be part of the deliberation that takes place. And I, much like my colleague, Sue Myrick, our minds could keep expanding about the what if's, but I would say to you that I would hope that whatever is done it would utilize common sense, that it would be written in more direct language rather than what I would call Jeffersonian rules or constitutional terms, that it would be very direct because if this came into being we would want to avoid the things that we have faced in this body in our past of all of a sudden reaching an impeachment and the entire country learning that included judicial review and a lot of other things or elections that have taken place about ambiguity or uncertainty, that we need to make sure that we would spell it out in direct language.
I would think that we would need to include a transition of a status quo. If all the Republicans except five were killed and none of the Democrats, do we then elect a new Speaker? Would that party that held the Speakership, would they be in control? At what point would there be elections? So transitions I would hope would be a part of this. And I am not saying -- and I do completely agree, Mr. Frost, that if we were having a constitutional amendment it would not specify everything but would rather give this body that ability. But I think we ought to utilize common sense, have direct language, talk about the status quo and a transition, whether that would be subject to judicial review.
We should include direct language about what constitutes an emergency. We should, in my opinion, have a document that is not something that would be broken up and only known and understood in the event of a problem, but rather one which was widely known and agreed to politically by both parties. I think we should have a transition period to where we had an agreement even pending passage of this or something that would be signed by the President, but an agreement of how we were going to operate in the interim. And these are unthinkable ideas but they are problems that today we have to be responsible to address.
I think Mr. Frost has given adequate knowledge and purpose to what we are doing here by saying that he believes the majority has this obligation to do it, but I think that equally his party or minority party accepting this responsibility should be patted on the back also because this deals with the institution.
So I am hopeful that these few things that I talked about would be part of an agreement that not only the House but the Senate became a part of and that we were able to avoid in the time of catastrophe, we would be able to break out a document that was already agreed upon and not fight about it. Those are my comments.
Mr. Dreier. Let me say, Mr. Sessions, those are all extremely thoughtful questions that you raise and I think that that input, just what you provided in your statement will be very helpful as the work of this joint committee proceeds. So thank you very much for raising this.
Mr. Frost. I would just comment, the strength of this country is that we are a nation of laws and those laws need to be clearly stated and easily understood. I would only comment to the gentleman that it may be difficult for the parties to reach an understanding, an agreement, that would supplant law and that the most important thing is to have clearly understood statutory law as to what happens.
Mr. Sessions. I think I agree with the gentleman, but if we are going to allow this body to determine its own succession if that were necessary and other things, I think that an agreement that would be worked out ahead of time, because you and I understand, as we all do, that majorities in both bodies come and in both majorities go, but that an agreement about how we handle that is something that could be carefully done. If nothing more than if the body -- if the majority changed hands, then here is how it would be handled. I am just saying I think, Mr. Frost, you know this is true also and I think you have said it during this hearing, but during a time of crisis we need to be able to respond as a body or there is no need for us to do this at all, and I think we ought to address every single one of those. That includes a status quo in transition that would clearly enumerate what would happen in the event of the inevitable, and I applaud both of you for taking this undertaking not only with due diligence but with the seriousness that is required.
Mr. Frost. I appreciate the gentleman's comments and I think the thrust of his comments are correct. My only point is whatever we provide for transition probably would need to be provided in statutory law or the Rules of the House rather than an agreement between the parties.
Mr. Sessions. I completely agree with that, but for whatever reason, all I am trying to suggest is that we do come to some agreement because sometimes votes are along party lines and I would like for this not to be a party line vote. And so that is my substance of an agreement that we move forward on, and I think you and I completely agree with each other and I yield back my time.
Mr. Linder. Mr. Hastings.
Mr. Hastings of Washington. Nothing.
Mr. Linder. I would ask unanimous consent to place in the record a statement from Ken Duberstein. Mr. Duberstein served as the White House Chief of Staff in the Reagan administration and has experience in presidential transitions and continuity of government planning. He has expressed his belief in H.Con.Res. 190 as a crucial step toward ensuring that Congress' constitutional duties to represent the American people can be fulfilled in the face of any catastrophe. Without objection, his statement will appear in the record.
[The statement of Mr. Duberstein follows:]
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. Mr. Linder. I commend you for bringing this before us. It is very timely and I appreciate your leadership. The hearing is concluded.
[Whereupon, at 11:20 a.m., the subcommittee was adjourned.]
