Nearly four and a half years after the Sept. 11, 2001, terrorist attacks, we continue to see regular reminders of the massive and embarrassing failure of our national government to do what is necessary to protect American citizens, and the American system of government, from the impact of terrorism.

Last week, we had the nerve gas scare in the Senate, in which sensors seemed to pick up signs of nerve gas in the Russell Senate Office Building, sending hundreds of people, including Senators, into the garage for hours. Luckily, it was a false positive. But if it had been real, we might have had a terrible catastrophe--many Senators dead, many others in intensive care units, no quorum and no functioning Senate for an indefinite period.

For 53 months, it has been apparent that a real attack--something akin to the anthrax scare of 2001-02, the small-plane panics of the past three years or the nerve gas false alarm of 2006--could cripple Congress by killing and/or incapacitating large numbers of lawmakers. The Senate can replenish itself relatively quickly in the event of many deaths, since most states allow their governors to make appointments to fill any vacancies, but there is no provision in place for incapacitation. Seats could remain occupied but without Members able to fulfill any official duties, even up to six years in duration.

The basic problem flows from the Constitution’s quorum requirement: a flat and clear stricture that a majority of the membership of each house of Congress is required to do any official business. But what if an attack, like the one that would have beset the Capitol if United 93 had not crashed in Pennsylvania, killed a majority of House Members and left others severely injured? The House would not be up and running for months, until special elections could be held. What if an attack using weapons-grade anthrax infiltrated the air-conditioning and heating ducts in Senate office buildings? Sixty or more Senators might end up in intensive care units for months or longer, with no provision to replace them and no constitutional quorum. No quorum, no Senate; no Senate, no new laws.

These problems--flaws, if you will, in the constitutional system that are caused by conditions unanticipated by the framers--were identified almost immediately after Sept. 11. The Continuity of Government Commission, co-chaired by the late, great lawyer Lloyd Cutler and the great and very much alive former Sen. Alan Simpson (R-Wyo.), carefully looked at the evidence, the law, the Constitution and the problem and unanimously concluded that the only reasonable solution was to amend the Constitution to allow emergency interim appointments to both houses for brief periods until the House and Senate could be replenished and operate as the full, representative bodies the framers intended. (Let’s stipulate that the other solution--an America operating for months or longer with no Congress and no checks and balances, under a form of martial law--is unreasonable.) Under the Cutler-Simpson scenario, appointments would apply to the House after a devastating emergency for both deaths and incapacitation, and to the Senate for incapacitation alone.

The reaction of Congress was, basically, to yawn for months and months after Sept. 11, despite the pleas for deliberation on these issues and then for some action. The Senate’s leaders never formally acknowledged a problem and did nothing to address it. Sen. John Cornyn (R-Texas), then chairman of the Judiciary subcommittee on the Constitution, drafted an appropriate constitutional amendment; he got strong bipartisan support, including from Sen. Russ Feingold (D-Wis.), but the full Senate Judiciary Committee never took up the issue, momentum subsided when Cornyn gave up his gavel. Senate Majority Leader Bill Frist (R-Tenn.) to this day has not spoken in any serious way about the problem or the danger to the country and the Senate.

Finally prodded by the commission and by public embarrassment, the House began halting consideration of the issue. Many key Members of the House, notably Judiciary Chairman Jim Sensenbrenner (R-Wis.) and Rules Chairman David Dreier (R-Calif.), were adamantly opposed to anything that could hint at any appointments to the House, no matter how temporary or how dire the circumstances. They acted instead to ram through the House a poorly drafted, ill-considered bill to expedite House elections, forcing them to occur in the states within 49 days, whatever the circumstances out there.

New Orleans provides an interesting case study of how the bill would work if applied. The Crescent City is still struggling to be able to hold any elections postponed from last November, and won’t be able to do so for some time to come. If Hurricane Katrina had been a terrorist attack--one of a series around the country that had eliminated many Members of Congress--the Sensenbrenner-Dreier bill would have required them to have had their elections this past October. It’s ridiculous.

But when Members, including Rep. John Larson (D-Conn.), pointed out flaws in the bill and recommended constructive amendments, they were brushed aside rudely like annoying gnats, and the bill was rammed through the House in the now-typical anti-deliberative fashion.

When it foundered in the Senate, Sensenbrenner and his ally, Speaker Dennis Hastert (R-Ill.), cajoled and intimidated the Senate Majority Leader and the Senate Appropriations Committee to add the expedited election bill to an appropriations measure, violating a basic stricture against legislating on appropriations bills (honestly, it’s hard to keep track of all the affronts to the legislative process in this case) and forced it into law.

Expedited elections, however, do not deal with the issue of incapacitation. So Dreier cooked up a plan to have the House amend its rules and unilaterally change the quorum requirement, allowing the Speaker to refuse to recognize dozens or hundreds of incapacitated Members, allowing the House to operate with a quorum as low as two or three instead of 218.

John Williams of the Rules Committee staff has just drafted a thorough law review article on the history and background of the constitutional quorum requirement. He makes it clear that the framers discussed thoroughly the pros and cons of different quorum numbers--allowing expedited business by having a quorum below a majority of Members, allowing Congress to adjust the quorum numbers to fit different conditions, having a supermajority quorum requirement. Yet they explicitly rejected all of these options, wanting to be sure that there would be no manipulation of the process by sitting Members for purposes of expediency or political gain, and to be sure that the goal of representation was met--making sure that a small group, unrepresentative of the nation as a whole, could not set major national policy. The record is clear.

And Williams’ careful discussion of the evidence makes it clear that what Dreier and the Rules Committee did by changing the quorum requirement is flatly unconstitutional. It is also irresponsible. In the meantime, the full Senate has not done anything--even anything irresponsible--to address its survival after attack.

Last week at the Republican House retreat, Dreier brushed aside calls by Democrats, outside observers and many Republicans for a return to the regular order, saying he saw no need to change the disregard for rules and norms that has become the typical way of doing business in the House. The disregard for institutional integrity will come back to haunt us all someday if and when terrorists try to realize their goal--to devastate American democracy.

Norman J. Ornstein is a resident scholar at AEI.