Power to the people, with Gordon Lloyd (San Francisco Chronicle) October 27, 2003

It sounds like the plot of a Tom Clancy novel but, in reality, it is the subject of congressional hearings and proposed legislation. If a nuclear device or a crashing airplane strikes the U.S. Capitol, killing a hundred or more members of Congress, how will government be reconstituted? Since Sept. 11, 2001, this is no longer fiction. Democratic presidential counselor Lloyd Cutler and former Senate Whip Alan Simpson, a Republican, have co-chaired a joint project of the American Enterprise Institute and the Brookings Institution to make recommendations on this topic. Former House Speakers Thomas Foley and Newt Gingrich were among those who served on the commission.

Although everyone agrees that in such an emergency Congress needs to be reconstituted quickly, wise heads have posed some good, hard constitutional questions. Many wish such questions had been asked before rushing the Patriot Act, with its uneasy balance between emergency government powers and individual civil liberties, into law.

The controversy about the continuity of Congress centers on who selects replacement members of the House and whether a constitutional amendment is needed. The main proposal would amend the Constitution to allow governors to appoint temporary replacements to the House in the case of catastrophic loss of 100 or more members. Wisely, some are now questioning whether a constitutional amendment is appropriate, and why “the people’s House,” should be filled by executive appointment rather than by election.

The Constitution has proven to be a remarkably durable document, providing sufficient flexibility for government to preserve itself. The Constitution says that when vacancies occur, elections should be held to fill them, leaving the “times, places and manner” of such elections in the hands of state legislatures, adding that Congress may alter such regulations. The emergency planners — notably Norman Ornstein of AEI — fear that such special elections will be too slow to save the republic, and wish to empower governors to appoint temporary members of Congress, as the 17th Amendment allows. But there’s more at stake.

First, senators represent states and representatives represent people. It is one thing for a governor to appoint a new senator to represent the state, and quite another to allow an executive to override the people’s right to elect their own representatives. Further, as California has demonstrated, even complex special elections with 135 candidates can be held with surprising dispatch. A study of states with special election time-limits shows some allow as few as 28 days, with California at 63 days and New York allowing 30 to 40 days. Clearly such replacement elections could be held quickly, in 30 days or less.

A second fundamental question is why a constitutional amendment? This process alone could take two or three years, and Congress already has the power to preserve itself. Why not give Congress a chance to find a practical solution first and avoid dangerous tinkering with the Constitution.

Do we really want to shift yet more power away from the people and into the hands of the administrative state? Must we disenfranchise the people and ask one elected official to appoint other representative officials? No, let Congress ask state legislatures to submit their plans for emergency elections instead of passing more federal laws or constitutional amendments.

Life is full of contingencies and it is neither possible nor desirable to redraft the Constitution to anticipate every one. Each time we do that, we remove the power of self-government from future generations, the very think the Constitution was meant to protect. Ornstein says holding special elections on short notice is absurd. The real absurdity is removing the people’s ability to elect their own House of Representatives.

This op/ed appeared on Page A-19.