Norman J. Ornstein
To be sure, the situation in this case was ambiguous; a plane briefly crossed into the no-fly zone, the alert was raised to a code level that did not mandate an evacuation, and the Capitol Police cleared the code with dispatch when it became clear that there was no threat. But the confusion that ensued when the threat level was raised--some officers saying evacuate, some offices doing so on their own, others staying in place--was a sign of the many issues that have not been resolved even after a number of test cases. Remember when former Kentucky Gov. Ernie Fletcher's (R) plane crossed into forbidden airspace, causing mass chaos?
What if there were an attack at an inauguration? We could lose everyone in the line of presidential succession, all or most of Congress, and the entire court, leaving no clear authority to rule on the legitimacy of institution.
Part of the problem here is a lack of ongoing and consistent training of Capitol Police officers, some is the lack of ongoing education for Congressional offices (including Members). But behind both of these conditions is the larger, sad reality. Under both parties, there has been nothing but indifference to the real threat from people who failed in their first effort to decapitate Congress and shatter our constitutional processes--and who have a history of returning to the site of their failures.
There are huge gaps in our law and Constitution when it comes to reconstituting or maintaining a Congress that has been hit with a devastating attack. Neither chamber can operate without a quorum of its Members. The quorum as defined in the Constitution is unambiguous in that regard. Neither has a process to cope with the possible incapacitation of large numbers of Members, which could occur in many forms--from a collapse of the Capitol via an airplane hitting the Dome to an anthrax attack (neither, of course, farfetched.) The House cannot replenish its membership without special elections that take months under the best of circumstances.
Yesterday marked six and a half years since 9/11. Under the Republicans, years of foot-dragging after the attacks were followed by a series of moves to get critics off their backs, including an unworkable, sloppily drafted plan for sharply expedited elections and an unconstitutional rule unilaterally redefining the quorum. Under the Democrats, in power for more than a year, both ill-considered efforts remain in place.
There have been no hearings to explore ways to make sure that an attack will not be followed by martial law, to get our checks and balances back in operation as soon as possible. I realize the agenda has been heavy--but Congress can manage to do more than one thing at the same time. Ironically, the only real focus over several years has been evacuation plans--and we can now see how uneven and imperfect they are.
The problem goes way beyond ensuring continuity in Congress. There are serious gaps with presidential succession. One hearing was held on the subject, in the Senate, several years ago. There was no follow-up and no action in an area where a simple statute would suffice. The only law in place regulating Supreme Court succession in the event of a catastrophe is a statutory quorum requirement of six. What if there were an attack at an inauguration? We could lose everyone in the line of presidential succession, all or most of Congress, and the entire court, leaving no clear authority to rule on the legitimacy of institution. Here a law should be easy to enact, creating a special emergency court of appeals to be activated only if an attack took the Supreme Court below its quorum with no opportunity quickly to replenish it.
But despite the best efforts of many concerned lawmakers, especially Rep. Brian Baird (D-Wash.) and Sen. John Cornyn (R-Texas), we have had indifference and inertia. Now there is another area where the threat of a terrorist attack demands hearings, deliberation and action: the upcoming elections.
If our presidential election were disrupted--not in one concerted national attack, but in a handful or series of incidents--we could have a nightmare on our hands. Decisions about how to handle such things are local matters. But what if local officials made a series of individual, random decisions in a way that tilted the election--one opted to go ahead with voting despite steep drops in turnout, another abruptly canceled the vote, a third canceled voting in some areas in a state but not others. Those moves, made by partisan election officials, could decide the outcome of a presidential contest. Shouldn't we be thinking through carefully whether there is a better way to decide what to do in this kind of crisis?
There is more. In our unique system of elections, we have fixed dates that establish the process. We have the period leading up to the party conventions, between the conventions and the election itself, from the election to when the electors actually cast their votes, between the time the Electoral College casts votes and when the new Congress counts and ratifies them, and from then to the inauguration. Each time frame has its own issues to deal with if something happened to the candidates. We should be thinking about shifting some of the dates to minimize potential disruptions or succession issues. Once again, Congress has simply ignored the problem.
None of these issues has any partisan or ideological coloration. All get back to the fiduciary responsibility Congress has to protect American institutions and our system, including that of Congress itself--a responsibility Congress has, in a bipartisan fashion, abdicated.
Norman J. Ornstein is a resident scholar at AEI.