What If Congress Were Obliterated?

October 22, 2001

Transcript prepared from a tape recording

Moderator:	Norman Ornstein, AEI
Panelists:	Representative Brian Baird, U.S. House of Representatives, (D-Wash)
	Bill Frenzel, Brookings Institution
	Thomas Mann, Brookings Institution

Proceedings:

AEI MODERATOR: Today the American Enterprise Institute hosted a forum on security and constitutional issues surrounding the deadly attack on the U.S. Congress. Panelists include U.S. Representative Brian Baird, former House member Bill Frenzel, and congressional experts Thomas Mann and Norman Ornstein. The event runs an hour.

MR. MANN: Good afternoon. My name is Tom Mann, and I'd like to welcome you to the Brookings Institution. I know you didn't plan on coming to Brookings today. I wanted to express my appreciation to everyone for making this switch.

As you know, there was a blown transformer and electricity is out on several blocks, including AEI. We haven't yet verified that it was an act of Osama bin Laden, but by the end of the session we may have some more intelligence on that.

This event is sponsored by the Transition to Governing Project which is an activity of the American Enterprise Institute in association with Brookings. Norm and I have had the pleasure of directing this project over the last three years. It's a wonderfully malleable topic. It's allowed us to cover a whole range of matters in the shift from campaigning to governing, in moving from the first G.W. Bush presidency to the second, after September 11th.

But I have to tell you never did we imagine that under this topic would come a discussion talking about the transition of governance under circumstances of physical calamity. But the horrific events of September 11 and the belief of many of us that the fourth plane that went down in Pennsylvania, thanks to the heroic actions of some American citizens, was headed for the Capitol and could well have destroyed it and many members of Congress in the process.

Shortly after that, Norm Ornstein, my colleague, a resident scholar at AEI, wrote an article in Roll Call called "What If Congress Were Obliterated?" Good question. Soon after that, Congressman Brian Baird, who represents the 3rd Congressional District of Washington, introduced a constitutional amendment to begin to deal with the special problems that arise because of provisions in the Constitution allowing for the filling of vacancies in the House of Representatives.

Norman and Congressman Baird will present their thoughts about this subject, and then my dear colleague Bill Frenzel, a guest scholar at Brookings, who served in the House of Representatives for 20 years as a Republican member from Minnesota, will offer his reactions and responses, and then we will proceed to a general discussion. So we begin with Norm.

MR. ORNSTEIN: Thank you very much, Tom. It appears that what happened today was an act of PEPCO, not an act of God or bin Laden. But it will tell you something about the temper of our times that as I drove in to work this morning, coming down 17th Street, there was a horrific traffic jam because about six blocks in the heart of Washington were closed off. A transformer had blown underground and created a fire, and all the electricity and phones were out for a sizeable period of time. Not knowing anything, but just seeing the traffic jam and then some flashing lights ahead, I thought the worst.

It's perhaps an unfortunate fact of life now that things that happen otherwise are going to be construed in a different way.

Some, I'm sure, will be upset by the title of this panel, "What If Congress Were Obliterated?" It is a jarring and impolite title in many ways. But it is unfortunately relevant and relevant in a way that we need to, not just that we want to, but we need to confront the most unpleasant possibilities to make sure that we don't end up with the worst case scenarios.

Just to start, let me give you an analogy. Imagine you had a couple with young children that decided to go off on a long trip, a safari, in which they were going to together, husband and wife, take a number of small planes with bush pilots into remote areas, and they left no provision for the custody of their children behind.

Most of us would view that as an irresponsible act. Now lots of people go off on safaris and take small planes into remote areas. Nothing happens to them. The odds may be slim. But people shouldn't do things like that when they have a larger responsibility. And we now have a tangible possibility, remote, perhaps, but United Flight 93 suggests not nearly as remote as we would like of Congress or large numbers of members being rendered incapacitated or killed by some kind of act in a way that our Framers never anticipated, couldn't. In a way that even in the Cold War our government decision-makers didn't anticipate.

What they anticipated during the Cold War was that we might end up in an all-out nuclear war where missiles lobbed from several thousand miles away would take a significant period of time to get here, and so we built an elaborate facility in Greenbriar, West Virginia, roughly four hours by car, about 45 minutes by helicopter, four or five hours by train or bus, believing that if this happened we would have enough notice that we could take Congress, put them in helicopters, buses, or on a train, get them down to West Virginia and secure them maybe for months at a time, and then they would be able to come back and serve as our government.

What we saw with United Flight 93 is the possibility of no notice whatsoever. And the problems here are multiple. They include questions of where Congress would meet officially, given that the Constitution says that they meet at their place of meeting in the Capitol. Both houses have to consent if one of the houses meets somewhere else, and most importantly, whether they can officially meet to do any business of the Nation whatsoever that matters, like passing laws.

When Article 1 of the Constitution sets a quorum as a majority of the members of a House, an action of significance can't take place without that quorum. And perhaps even more significant, if large numbers of members are unable to participate, the House of Representatives, under the Constitution, can only replenish itself through special elections, and those special elections, where the rules have been set in place by the States, take, we know, just looking at recent examples, anywhere between three and six months.

Now the one time when you want Congress around the most, as we saw in the immediate aftermath of the horrific events of September 11th, is right after or during a disaster, a crisis, a catastrophe. They've got to pass legislation that might include emergency appropriations for disaster relief, for military operations that might include anti-terrorist legislation, that might in fact simply include the daily business of government without which the Federal government couldn't operate. So we simply can't afford to have a Congress that can't exist for several months.

Now the quorum requirement is a little looser than it looks like when you look at the Constitution directly. As least as parliamentarians have interpreted it, at least since the Civil War, a quorum, the number of members necessary to do official business, has not been a majority of all the members, a fixed number, 218 in the House, say, but rather a majority of those elected, sworn and living.

So in theory if only two members of the House were living, you could still operate as a House of Representatives. But if you think about one of the more realistic possibilities, if say we'd had that horrible plane crash into the Capitol, jet fuel igniting and the rest of it, it would include not just large numbers of members killed, but perhaps even larger numbers in hospitals, in burn units, incapacitated, in comas; living but unable to participate as part of a quorum.

So provisions simply have to be made for stopgap measures to make sure we can have a government functioning where the alternative might be martial law or something close to it.

I thought of this, frankly, as soon as I heard about the possible direction of United Flight 93 and wrote up a piece right after that. It turned out that Brian Baird was also thinking probably simultaneously along similar lines, and we talked at length about what might be done here in the aftermath of that.

I would say just one other thing. I hate constitutional amendments. I don't like amending the Constitution. I've been opposed to virtually every amendment. The only one that I have tended to support in the past would be one that would repeal the 22nd Amendment that limits the President to two terms.

But in this instance, I racked my brains to think about ways in which we could deal with the problem of making sure there were enough members to have a representative body passing laws.

The Senate, by the way, is not a similar problem because the Constitution allows governors to appoint Senate replacements. It only allows special elections for House members.

There is no way to do this short of a constitutional amendment. Congressman Baird has drafted one up that may need a little bit of tinkering, but that basically is along the right lines. When you amend the Constitution, you want to do it in as short, concise and direct a fashion as possible, without any additional verbiage, and he's thought along those lines and should be commended for it, has a sizeable number of co-sponsors now, and we now need to get leaders who naturally--it's the human instinct, just as it is with parents who are going to go somewhere that don't want to confront the possibility of their own demise, not to act in ways that are responsible. But now, especially with the events of the last few days underscoring this, it is clear that is the only prudent thing to do.

Thanks, and let me turn it to over to Mr. Baird.

REPRESENTATIVE BAIRD: Thank you, Norman. I want to think the American Enterprise Institute and Brookings and Bill Frenzel and Norm for their involvement in setting this up.

Pretty much on the lines of what Norm said, on the night of September 11th, as you recall, members of Congress gathered on the steps of the Capitol. We had been advised it would not be prudent to go into the building for some concerns about safety.

I spent some time that evening thinking about what might have happened if the plane had hit the Capitol. And I spoke the next morning, I believe it was, to Mr. Hastert, Speaker Hastert, and suggested that we needed a very clear answer to the American people if they were to turn on their television set and see the Capitol in flames and have the horrific news that great numbers of their House members and Senators had been killed.

If it were to happen, say, during the State of the Union address, and if it were to be a nuclear weapon instead of an airplane, we would have an even more tragic scenario with not only the legislative branch but the executive branch and substantially the judicial branch and the Supreme Court gone.

This is not a pleasant thing to think about, to say the least, but even more unpleasant would be that scenario followed by confusion and possible constitutional crisis as people began to debate what is a quorum, who appoints whom, et cetera.

That evening I began to study the matter extensively, spoke with scholars at CRS, reviewed the House rules, reviewed the constitutional history, and exactly as Norm said, we have a significant problem.

The Senate, as you know, can be replaced virtually overnight, but in a bicameral body, with special election required for the House, you are either faced with the choice of essentially government paralysis for a long period of time while we put together a special election--and it's very difficult to imagine even the fastest special election happening in fewer than say three or four weeks, and one wonders if that would do justice to the deliberative electoral process, if you really get someone in place and even if you did, you would still have three or four weeks of nonfunctioning congressional action.

One function Norm left out that's very important under the 25th Amendment, the majority of both the House and the Senate must confirm vice presidential nominees. So should that post become vacant, we could not fill it even if their line of succession were to take place and perhaps a Cabinet member ascend to the presidency, they could not appoint, or could not have a confirmed nominee to the vice president.

So we would be not only with a substantially impaired legislative branch, we would be with a substantially impaired executive branch, and this, I think, is unacceptable.

What we need to do, and I believe we need to do this soon, is establish a constitutional mechanism so that if the worst case scenario happens, the American people know that their government will be up and running in a constitutionally-approved fashion, doing all the things our Congress does within a matter of a few days.

It is a powerful message to our citizens to take care of this responsibility, and I think frankly a powerful message to our adversaries, that even if they succeed in killing each and every one of us, even if they destroy this magnificent building, the Capitol and many others, our government will persevere and our Constitution will persevere and our system of government will persevere.

There are some who are concerned, and I understand that, that raising this issue could frighten the American people. Actually I spent a fair bit of working on this for a few weeks behind the scenes, hoping to see what we could do to bring some experts together, and Norm was doing his work in parallel, unbeknownst to one another, and I think we both came to the conclusion that we needed to do things to move this forward.

The Congress has been deliberating many things of great importance, trade promotion, economic stimulus, aviation safety, but we are sworn to uphold the Constitution. It is our highest responsibility, and if we discover a gap in that that makes our Nation vulnerable, it is incumbent upon us to fix that gap.

It is analogous to me to an unlocked door on the cabin of the Constitution, and we must lock that door.

The final thing I would say is if we are concerned about reaction from the public, I had a couple of town hall meetings this weekend in Hazeldell, Washington and Vancouver, where I live, and was actually quite heartened. Quite apart from being terrified or panicked by this, the people who attended the town hall I hosted when discussing this were sober, were thoughtful, were rational, and the words I heard were it is unpleasant to contemplate, but it has to be done.

We must do this, and I fear, quite frankly--I don't fear, but my concern is that a delay when we know that conceivably we could be quite literally hit at any moment, a delay could be consequential for us. Whether my amendment is what we put forward or something else is far less important to me than that we put a thoughtful vehicle forward and resolve this problem.

I thank Norm for his astute study of this and convening this, and I'm looking forward to a good discussion. As Norm mentioned, a host of constitutional issues are raised by this, but a host of issues would be raised if it is not passed, and those would be raised in the worst possible climate, without the very bodies designed to deliberate such matters capable of functioning. We'd better deal with it now, and not later.

MR. MANN: Brian, can I just ask you to summarize the provisions of your amendment so that we have that on the table for discussion?

REPRESENTATIVE BAIRD: Surely. Thank you very much. I appreciate it, Tom.

It's fairly straightforward, and there are elements that can be discussed and evaluated one way or another, but here's essentially what it is. It is fairly simple.

If a quarter or more of the members of the House of Representatives are killed or disabled and unable to function, then within seven days the governors of the states in which the members are incapacitated or dead have the authority under the Constitution to appoint replacement members.

They will serve during a period of 90 days in which time special elections will be held to replace those members as full functioning members of the House of Representatives.

There is a small provision in addition that allows for if you have a 90-day period that is right before a normally scheduled general election, you wouldn't have to have two back-to-back elections. So there's sort of a 30-day buffer zone there.

And there is a fourth article which empowers the Congress to enact statutory language to implement this.

For example, there is no tradition in the House of Representatives for removal due to disability, or for temporary replacement due to disability, and Norm and I have discussed that.

The House would need to discuss and establish that procedure, but we can do that statutorily.

But it is essentially that simple. We would be up and running as a bicameral constitutional Congress within seven days, and we would preserve to the best of our ability the tradition of direct election which those of us who serve in the House, and I'm sure Bill would share this, we take great pride in it being a directly-elected body. We would preserve that tradition by moving straight to a 90-day special election as opposed to appointment for the remainder of the term.

It's that simple, but it solves the problem.

MR. MANN: Thank you. We turn now to Bill Frenzel.

MR. FRENZEL: Thank you very much.

Congressman Baird, I think you have done the Republic a favor by raising this question publicly, by your bill introduction. You have probably done yourself a real disfavor by asking me to participate in the program. My record on constitutional amendments include term limits, line item veto, single six-year term for the president, and a balanced budget amendment, all failures. I wish you much better luck than I have had.

I think the good thing other than simply being concerned about the ability of Congress to function in time of emergency is that the congressman has tried to keep this particular amendment relatively simple. And I understand he's had plenty of good advice from other people on how to complicate it, but he is trying to resist that.

It's sort of a bare-bones amendment. The government has 90 days to send in a stand-in. One of the things I always worry about when a government appoints somebody is that in the House of Representatives, people who get there once stay there forever, and you worry about the permanence of an appointment. But with a 90-day appointment, it seems to me governors are likely to appoint people who probably aren't going to participate in the next ensuing election, and so you might be spared that difficulty.

I think when you present it to the various judiciary committees of both bodies, they are going to ask if a quarter is right, too much, too little, is 90 days too much or too little, and I don't think any of us know. You simply picked a figure; it's as good as any that I could pick, and probably much better.

If we had some kind of hideous event that has caused a quarter of the Congress to be either dead or incapacitated, Congress is not going to be operating business as usual. It's not going to be passing bills and passing Mother's Day resolutions and et cetera. It's going to be appropriating, trying to decide what's appropriate powers for the Congress, for the president in the middle of this particular emergency. So inexperience is not going to be a problem for these people, and as long as they do as I hope--that is, don't show up when people file for election--I think it ought to work pretty well.

The Congressman has been--it has been suggested to him that he ask the governors to replace party for party among the deceased or disabled. I think he has come to the right decision to make it as simple as possible, do not tie the governors' hands. Let them appoint the people they're going to appoint, and it won't be a very bad mistake for 90 days.

I think the hardest thing about this is to get Congress to focus on it. It's a little bit like writing your will. It's fairly unpleasant. You don't like to talk about not being around, and of course you always assume as you work through the problem that you're one of the three-quarters that are left. But you have to do it, just as you have to write the will as a consequence of your care for the next generation.

It raises additional questions for the future, such as time of meeting. I remember when I was told to my horror that we had a nice place to meet up in Greenbriar, but unfortunately there was no room for our families, and I think members of Congress took sort of a dim view of that question.

But, nevertheless, there has to be alternate meeting places, and I think those should be handled other than in a manner that might encumber this particular amendment.

Committees are going to mess around with this amendment enough, so I hope that it is not encumbered with extra questions such as I have suggested here.

If you will notice in the papers today, President Bush has asked for some sort of authority so that he could spend money if something happened to the Congress because we are operating now on some kind of supplement or whatever, continuing resolution. That can be solved in other ways. I don't think that needs to encumber this resolution.

I hope that it is kept as relatively simple as it has been introduced, and that Congress will take a look at it.

As you know, the rule for constitutional amendments is the old Bert Lance rule, if it ain't broke, don't fix it. And in this case, it's clearly not broken, but it has also just revealed to us a piece of the Constitution in which we have an important area not covered which could hardly be contemplated by the Framers.

Again, I congratulate the chairman and Norm Ornstein and Tom for having raised the question. I think it's a fun one for us to think about as long as we aren't congressmen and don't have to think that it's going to be us that are going to be wiped out.

Good luck to you, Brian. I hope it goes well.

MR. MANN: Bill, thank you very much.

Like Norm, I'm a conservative when it comes to amending the Constitution, and I was reminded of that when Bill reeled off all those constitutional amendments he'd failed to enact on term limits, balanced budget amendment, line item veto, and single six-year term for the president.

It's a good thing, say I, that it's so hard to pass constitutional amendments. But in this case, I think there is reason to stop and think and to remember that the continuity of constitutional democracy is more important than anything we can imagine providing for in the face of the attack we have experienced, the continuing acts of terrorism and those that will likely follow it at some point in the future.

There is a natural tendency to look away from these matters to focus on the terrorism and the response to it, but it turns out that the character and quality and robustness of our democracy is as important as anything we could tend to at a time like this.

I begin by asking Brian to elaborate on one provision that Bill has already picked up on, and that is I can see clever minds are already thinking of the possibility of partisan governors using the opportunity to appoint members of their party to replace members of the other party. That, of course, occurs now with Senate vacancies. That is certainly how the junior senator from Georgia got appointed to replace Paul Coverdale.

You talk about this in your fact sheet. Political parties aren't mentioned in the Constitution. It's very difficult to require this.

Brian, do you think if such a horrendous thing would ever happen that a norm would almost certainly develop, given the catastrophic nature of this, that a governor would almost certainly not seek to abuse the possibilities of this power?

REPRESENTATIVE BAIRD: It's a critical question. It's probably one of the two or three that I get asked the most often, and you articulated it well, Tom.

The Constitution now does not mention political party anywhere in it, and we have thought--in fact, in the original draft I circulated, it did require appointment from the same party because you did not want to open the door to political manipulation at such a time of crisis.

However, I think honoring the tradition of not involving party in the Constitution has got value, and so I chose to remove that.

My hope would be that the governors would think first and foremost of who is the best qualified to serve the country during this circumstance.

Frankly, if I look within my own state, I can think of people within my own party who I would be proud to be replaced by, but I can also think of people from the other side of the aisle who have served this country well, and were they to replace me in time of crisis, I would think that would be fine.

To me, majority, partisanship is far less important than getting the finest people we can get to fill that gap, and I think that's how we should deal with it.

We did explore the possibility of would there be the possibility, for example, of statutory language recommending this or even state resolutions. The Constitution is pretty clear and has been interpreted that the states cannot impose additional extra-constitutional requirements on people for service.

So the states, under current constitutional interpretation, could not require their governors to appoint someone from a particular party. It might express a sense of the legislature, perhaps, but my own belief is, trust the governors to try not to use this opportunity. I doubt they would. It would be the most horrific event in the history of this Nation, and I think it would call upon the highest qualities of our governors and our legislators and not on the most petty incidents.

MR. MANN: Thank you very much. I'm going to invite members of the audience, if you would, to approach the mike and ask questions here. While you're gathering yourselves, I would pose to Norm and Bill--

MR. FRENZEL: Can I talk about that?

MR. MANN: Yes, please.

MR. FRENZEL: You mentioned some of my failed efforts, one of them being the balanced budget amendment. And one of the great problems of that amendment was that it happened to have a lot more words in it than the entire Constitution, and all the amendments thereto at the time. And one of my suggestions is keep it simple. As soon as you give the first instruction to the governor, other people will see lots more to offer, and it is simply better to make it as simple a point.

MR. MANN: That makes a lot of sense, and this question, though, may work against it. We don't amend the Constitution very often. We don't have attacks on our homeland very often. Isn't this the time to ask more broadly whether there are any other sort of problems that we can see, I mean in continuity, in transition? Have we taken care of everything else with the earlier amendment dealing with presidential disability? Can you see anything else that ought to be at least discussed while Congressman Baird's amendment is being debated on the Hill?

Norm?

MR. ORNSTEIN: That's a really good point, Tom, because these ought to jolt us into thinking about horrific possibilities which are now not just theoretical. And certainly presidential succession, which is covered largely by two things, it's really the 25th Amendment and it's the Presidential Succession Act of 1947, as amended, that sets a pretty reasonable system in place for replacement of a president.

We go down in line through a series of people, from the vice president to the president pro tempore of the Senate, although the Senate might want to rethink the issue of the president pro tem who is by tradition the most senior member of the majority party, which is not necessarily the best way to go, to the Speaker of the House, to the members of the Cabinet in order of the creation of their particular cabinet posts.

But now we might want to think through whether we have enough, an adequate stopgap there. That's something that can be done by statute.

Part of what Brian Baird has done here, and I think it's extremely prudent, is to try to move as expeditiously as we can to get a constitutional amendment passed by both houses of Congress. Then it has to be ratified by three-fourths of the states.

But once you get the amendment through the Congress, and if Congress gets disabled, and we have a problem, the states can move that quickly enough and actually implement it.

So that takes a higher precedence right now, but certainly we need to think through that. I can't think of anything else at this point that I'd want to put on the table.

REPRESENTATIVE BAIRD: I think Norm hit the nail on the head. I think we might want to look at the presidential succession line, what would happen if the cabinet were all taken out, along with the president, vice president, speaker, et cetera. We need to have that question answered.

We also, as Norm articulated, we need to address the issue of where Congress would convene and who would convene the Congress. Is there a mechanism for sui generis meeting of the Congress? I don't know that there is, and again constitutional scholars could conceivably argue and come up with a rationale that there is. Terrific. We ought to have that clarified so that we don't have debate at a time of national crisis.

MR. ORNSTEIN: There is a--I would just one other note here--very interesting which I had not realized before this past week, that under 2 USC Section 27 the president is authorized to convene Congress elsewhere than the seat of government in the case of contagious disease or other hazardous conditions, and he can also remove all public officials from the seat of government in the event of disease.

So the president can move the Congress somewhere else. But what seemed obvious from the events of last week is that the leaders in Congress haven't got two or three or four places to go where they can accommodate 435 people with voting procedures, with room for staff. There are lots of places, both around the Washington area and elsewhere, and what we ought to be doing, probably, what the leaders ought to be doing, is making sure they've got some places designated; some perhaps publicly, some not publicly, just in case.

MR. MANN: All right. Please identify yourself and ask your question.

QUESTION: I am with the Ethics and Public Policy Center, and the conversation recently has moved toward my question, which in a sense may be beyond the jurisdiction of this meeting. That is, if this government is totally decapitated, all three branches--first, I will say that is feasible. Over 50,000 freight containers arrive on our shores, Baltimore and New York, I believe, every week. They can be carried on the highways. One could be parked down near the Capitol. It could be set off by remote control and would obliterate all three branches.

Does your resolution--which I highly commend and I commend the spirit and the way you're going about it, I hope it passes very quickly. But do you need another resolution to take care of the other branches of government, the president, the succession you just mentioned? The Supreme Court is a different thing. Or do you think the story will be complete if your resolution as now contemplated is passed?

REPRESENTATIVE BAIRD: I think in the following way, we can address, as Norm mentioned, the presidential succession issue constitutionally can be addressed through statutory language. So we could revisit the issue of if the line of succession is the optimal line right now. We could even provide backup mechanisms for that.

One way that I think is very promising about this amendment. If we can find a vehicle for rapidly reconstituting the House, presumably even if the entire presidential line of succession were gone, if the House reconstitutes and chooses a speaker, that person would, as I understand it, become the president. So that person then--we've now got the Senate back in place, we've got the House up, we've now been able to establish a president. That president could appoint a cabinet and on down. We could fairly quickly at least the working infrastructure up. We might want to do some statutory language on the line of succession, but if we can get the House functioning again, I think we'll be okay.

MR. MANN: And presumably appoint Justices of the Supreme Court and have them confirmed.

REPRESENTATIVE BAIRD: Exactly.

QUESTION: My question implies there's no 30 minutes to get to Greenbriar.

REPRESENTATIVE BAIRD: Exactly right. We have to--the scenario I believe we must honestly contemplate, and it is horrific. We had the scenario almost in place a week after September 11th, when the President addressed the joint session, we had the Senate, the House, the Supreme Court, much of them, many members of the Cabinet and the Joint Chiefs of Staff present in one room.

Now the Vice President was gone, and wisely so. But if the Vice President were there, for example, in the State of the Union address, we need--we would lose almost everything. And if it were nuclear, as you, I think, describe accurately, we have lost the seat of government itself, plus the infrastructure.

Norm's point about having some possibly public or also possibly secret place where those people who would be appointed to the House and to the Senate could convene quickly would be absolutely critical.

The American people would need to know at that time that within a week their constitutional government would be functioning. We have it in our power to create that situation, and we must do it.

MR. ORNSTEIN: Let me just add, the root of this is the amendment, so that you can get a House and Senate replenished quickly enough that you can then pick people who fit within the Presidential Succession Act. But it does suggest that since the Presidential Succession Act includes all Washington officials, although very little likelihood that everybody's going to be around at the same time, but it may be wise now to think through whether it might make sense to have at least one person who's normal base of operations may be somewhere else, just in case.

MR. MANN: All right. Please.

QUESTION: My name is Jim Snyder. I'm at the New America Foundation. I have a question addressed to the two members of the House.

The norm in Congress, as you know, is to be hostile to new technology in congressional deliberations. The House, for example, banned cell phones and computers on the Floor. It bans remote deliberation even in the Capitol complex, they won't allow members to vote from their offices.

I remember last year talking to the House parliamentarian about remote voting because it seemed so inefficient to the current system, and he reacted with utter horror at the thought that this tradition might be violated.

Clearly this is an extraordinary situation. I think that norm needs to drop and there should be a full discussion about how you do remote parliamentary procedure.

The scenario that you have is a much more extreme one than one that would necessarily call for remote parliamentary procedure. You might simply have a threat to the Capitol complex which seems very plausible, given this week, when Congress is actually shut down. You could have Congress have to be out of session for a month. It should be able to operate remotely, I would think, and it's not just Congress. There's the question of other branches of government. We have 80,000 public bodies in the United States manned by volunteers.

You could easily imagine those public spaces being threatened where officials, you know, where they have families and other responsibilities, should be able to operate remotely, and Congress could facilitate that process.

So do you think it would be wise to have at this point a debate about remote parliamentary procedure? It's not a constitutional amendment, but it deals with this underlying problem.

REPRESENTATIVE BAIRD: I think we could begin to have the discussion. I think there are a number of pluses, but also a number of potential downsides. I'd be interested in Bill's comment. He's served longer than I have, but I find the opportunity to interact one on one just quite a bit different than when we're doing any of the other technological interfaces, and that spontaneity and personal touch is tremendously important. In a time of crisis, maybe some opportunity could be created, but I find that the tradition and the one-on-one contact tremendously important.

MR. FRENZEL: I have the same feeling. The difference between a committee meeting and a conference with a three-second drag, you just--as they do in the House occasionally, is to disconnect between the debate and the vote, and all the argumentation gets stale in your mind in between. If somebody made a good presentation, you've forgotten about it, and it's not a good idea.

As for voting from the offices, certain legislatures have tried that in the past, and have some really difficult problems with abuse. Other people voting for the elected representative. And as a matter of fact, in the U.S. House of Representatives, we have had a number--not a number, at least one problem of a member's card being used by others.

And so I think Congress is going to guard that vote pretty jealously, and there may be some things that they can do, and you would probably be a good person to suggest them to a congressman and to others up there. But they are going to be very careful before they get into things like that.

MR. ORNSTEIN: Really it's very hard to engage in that type of fraudulent voting. It's--you can't really use a card. I mean you can really tell who's the person voting, so I think that would solve that concern.

REPRESENTATIVE BAIRD: There are those technologies available. I just can tell you subjectively, I think that the people I represent, it is so fundamental to our sense of country and Nation and government that people who you elected are coming together to talk to other people elected by other people, in a real world, real time human interaction, and that I value tremendously. I'd hate to lose that, myself.

MR. MANN: Thank you. Next, please.

QUESTION: Sam McDonald from Reason Magazine. I was hoping you could explore a little more the idea of incapacitation as opposed to death, especially with the threat of biological warfare, and perhaps how you'd take care of some of these things statutorily, and some of the very thorny issues such as if something more virulent and more spreadable, such as smallpox. I mean that somebody is exposed and contagious but not afflicted with it yet, so could not make it to Congress, but was physically and mentally able to be making decisions, how you--like we must mentioned, voting from farther away, or--and just what mechanisms there are for dealing with that statutorily as opposed to with an amendment.

REPRESENTATIVE BAIRD: Well, Norm and I were actually discussing this right before, so I'll be interested in his comments as well.

As I mentioned earlier, there is no tradition in the House of removal for disability. We can remove the president due to disability. But there have been members who have served in the House for protracted periods actually in coma. And so this is a large step.

The mechanism, a mechanism I have discussed with folks might be--I think one thing you want to do is separate the decision about who is disabled from the body itself. In other words, you don't want other legislators saying, well, I never thought you functioned very well, now I've got an excuse to vote you out. I think you want to remove that.

A logical step for me would be the judiciary branch. We have a tradition of judges, the judiciary branch, making decisions about competence in a variety of nongovernmental functions. That would work.

Now the question arises what if the Supreme Court has been taken out as well? We have Federal courts at various levels, distributed throughout the country. It's possible to imagine panels of them convened to make quick decisions.

Norm raised a very important issue that I think would have to be addressed, and that is what if someone has been disabled by an attack, and during the interim someone has been appointed to take their place, and they resume their capacity, how do we deal with that? It is something we haven't solved yet, but I think needs to be discussed.

MR. ORNSTEIN: Absolutely. The one thing about the wording of Brian's amendment that troubles me a little bit is that that's left unaddressed, the question of somebody who becomes disabled for what might be a month, and then you have a replacement for 90 days, and maybe even a provision for a special election after that.

Now his amendment has, in the fourth clause, the opening for Congress to pass legislation, and it may be that overall the best way to deal with this is legislatively; to define what a disability is, to define a point when somebody is ready to come back. And it's going to have to be dealt with legislatively for other reasons.

And certainly what you suggest, now unfortunately we can weave scenarios where you might have a terribly contagious disease where Congress has members who simply can't, for public health reasons, convene as a body. That's another one of those issues, getting back to what Tom said, what else do we need to deal with, that requires some thought. And that may be where Jim Snyder's question becomes particularly relevant.

The issue of whether you need to make some provision--if it turns out that the Capitol is contaminated and that members shouldn't come together because they might spread a contagious disease, well, you'd have to have some ability to make a decision in a remote way.

That's the fail-safe provision that doesn't bring it in a regular fashion. But it's got to be dealt with.

And the question of disability now I think is equally as important, given what we've seen, not just with the 11th, but last week, and what we see happening now, as anything else.

It may be more likely that we would have very sizeable numbers of members who were simply taken out of the picture for a limited period of time, than a large number killed outright, and this is something again that was never contemplated before. And in the past, when we've had vacancies -- and you can look at--the last half dozen special elections to the House have taken between three and six months. When a member dies, and you've got 434 or 433 or 432 others around, we tend not to panic. Life goes on. That vote on the Floor tends not to be crucial at any given moment, so we can take our time going through a deliberative selection process. It's good to take that time, so that people who want to run for an office where there's a vacancy have an opportunity to do so, to get their message across, to be chosen in a deliberative way.

But now we have a very different situation because we're not talking about the possibility of one or two or three; we're talking about the possibility of 100, 200, or 300.

REPRESENTATIVE BAIRD: I think one thing to add to that, my background before coming to Congress was actually in psychology, in neuropsychology at that, so I've got some experience in this.

I would think that one thing we would look at is as you're determining a disability decision, I would think that removal from functioning due to disability would be--people would be loathe to do that if they thought there was a reasonable likelihood that you could function in the near term.

In other words, if it looked like you would recover and function, but if many of us were just basically on life support, we certainly wouldn't want to hold the rest of the government up from getting on with it, while our fate is determined.

I mean, frankly, many of us in Congress ought to seriously contemplate living wills and power of attorney, if we do not have them, so that these decisions can be made on our behalf, and perhaps I would--I don't have one myself, to address this. But I perhaps ought to look at that and appoint perhaps some guardian ad litem or someone with power of attorney to say, given what we know about the state of Congressman Baird right now, he has given me the authority to resign the position. It would be serious business, but maybe we need to contemplate that.

MR. MANN: All right. Next question. Jeff.

QUESTION: Jeff Biggs with the Congressional Fellowship Program of the APSA.

The previous gentleman asked my question, but since I've stood in line for 10 minutes, I'm going to try it in a different fashion.

I share the conservatism with respect to constitutional amendments of several of the panelists, and yet this has been argued, that we need this because of the immediacy of retaining legislative authority.

I think the worst kind of language you use in a constitutional amendment is ambiguous language, and I can't imagine any panel, even the Supreme Court, wanting to go down through 100-plus members, making a determination of whether or not they are disabled for one week, two weeks or three weeks.

It seems to me one way around that is if you frame that 90-day period especially as a stopgap, which is the way I would read it, anyway, then if people could not show up for the quorum call, but they were going to recover in three weeks, they won't be disenfranchised, and at the end of the 90-day period, they could resume their responsibilities.

But I think it has got to be definitive because if you leave this to an endless succession of value judgments, then I think you are creating a worse problem than you'd have, anyway.

REPRESENTATIVE BAIRD: That's a very interesting thought. I appreciate the suggestion.

QUESTION: That was worth waiting 10 minutes for. Thank you.

MR. : At least it was for us.

REPRESENTATIVE BAIRD: Yeah, that was very, very thoughtful. Thank you.

QUESTION: Hal Milliken, Washington Independent Writers.

I'm curious if you've encountered any resistance to the ideas you've thrown out. Did you get any written negative response to your written article? And with the slowness of the governmental appointment process in recent times, do you think this is even in good times going to allow people to try to speed up the process at all as far as advising and consenting on governmental appointments?

MR. ORNSTEIN: I have to tell you that when we put out the information about this session, we did get a couple of phone calls and a fax, I think, saying that this was in terribly bad taste, and that we would only encourage the terrorists. And there are certainly people who bridle at language like "What If Congress Were Obliterated?" But there weren't very many of them, and I think the experience that I've had, as I've discussed this with people, is very much the same as Brian Baird's, which is when you take three minutes to explain the problem, now more than ever people understand that this is not just theoretical discussion of what if, but--it's not something that's necessarily going to happen tomorrow. We don't want to panic and act and overreact in terms of things that Congress does or things that we do.

But it is prudent now to act expeditiously because we have a tangible prospect here, and I think very few people are going to react badly.

Now what I've gotten in my discussions with congressional leaders is much more, it's not how can you possibly even raise this, you'll only encourage them, but much more we've got a lot of things to do here, and it's denial. People don't want to publicly discuss or think about or act on the prospect of their own demise. It's the human reaction that leaders now especially have to transcend.

I'm actually hopeful, now that we have the President--the White House has recognized this prospect, and so they want to fill the vacuum by taking over appropriations and budget authority for a period of up to 30 days in contravention of the power of the purse, the first article of the Constitution and in other ways. Understandably so, since as Bill Frenzel noted, we tend to operate now on 30-day at most continuing resolutions, and you can't leave the government dead in the process.

But now I hope seeing how one branch has reacted to this, that we will at least get the chairmen, the ranking members and all the members of the appropriations committee becoming a little bit more enthusiastic about dealing with it in another way.

REPRESENTATIVE BAIRD: I've had people who've said that I don't want to think about this. Others have said I don't trust my governor. Others have said a variety of reactions. But many have been very thoughtful, and I think Norm's point is exactly right. Once you spend a little bit of time, it's like anything. You try to think your way out of it. Well, I'm not going to die. Well, if I die, somebody else will solve the problem, et cetera.

When you walk people through the scenario and you say, well, amending the Constitution is serious business, but all the alternative choices are less appealing, then people come on board. And I think Bill said we could argue about whether a quarter is too small, too large, whether 90 days is too short, too long, but somewhere we've got to make some criteria, and people have come pretty much and said these are common sense and we could live with them.

MR. ORNSTEIN: Let me just note that in the piece I originally vote, I suggested before there was an amendment out there that what the leaders should do is just put together a short term task force consisting of former members and constitutional scholars in an expeditious period of time to really work through some of these details, draft something, that then of course would have to go to the judiciary committees and through the normal deliberative process. But you could work at it in an expedited way.

And we've got people like Lee Hamilton, Pat Moynihan, Newt Gingrich, a historian, who would do this in a very thoughtful way, along with other experts.

It's better, of course, to work it through the normal legislative process. You don't want to just take this amendment as drafted and say, boom, it's long. Of course not. Now, though, is the time when we want to take a few weeks to work through, because the concept is the right one. Brian has hit on exactly the right thing to do, a stopgap period, so that we don't end up with what could be drift or worse for weeks or months, and work through some of the questions we've raised here, maybe refine it, perhaps refine it with a companion piece of legislation, a statutory approach that would deal with the questions of specifically defining disability, of talking about when somebody comes back and making sure it's limited to 90 days, or whatever it might be. That we can do relatively quickly.

What's important now is that four leaders, they're the ones with the responsibility, I believe, the Speaker of the House, Dennis Hastert, the Democratic leader in the House, Dick Gephardt, the Senate majority leader, Tom Daschle, and his counterpart, Trent Lott, they're the ones who have to say this is a priority, we'd better move on it, and that's where we need to go next.

REPRESENTATIVE BAIRD: I hope they will say this is the priority. If we can be excused for not passing trade promotion authority, if the Congress is wiped out, we could be excused for not having done that before we were wiped out. If we don't pass an economic stimulus package, we could be excused. Historically I don't think we're excused if we don't step up to the plate, deal with this responsibility in a timely manner. And I would not have any problem with a panel of experts convening, but we need to do this soon, not because we're in fear, not because we think it's likely that this would happen, but because we've recognized an important potential problem, and we have a sworn duty, a sworn duty, to uphold this Constitution and deal with these kinds of problems.

MR. MANN: I have a question from Al.

QUESTION: I'm Alton Frye from the Council on Foreign Relations. Surely Bill Frenzel was right that you are on the right course in keeping this simple and clean and reserving a lot of these detailed issues for the statutory process, including who certifies and so forth.

In some ways it's remarkable that we didn't resolve this during the peak nuclear fears because we certainly worked this during the decades we were trying to think about contingency planning for the government as a whole. But the sense of urgency never quite peaked even when kids were being taught to hide under the desks in school.

Now that the executive branch has talked about taking over, at least in the short term, appropriations power, or effectively such, as Norm was just saying, maybe that will lend energy to what is involved in this important concept.

The question I think that arises immediately is what signals do you have 11 days after framing this from the leaders and from the judiciary committee leadership in both the House and Senate? Are you getting some signals that would suggest they share the urgency and are prepared to move on this?

REPRESENTATIVE BAIRD: I've spoken with all the leaders on the House side, predominantly. It's mostly concerned the House. I've spoken with some folks on the Senate, but as we know, this is less of a concern for that body.

I think people appreciate the concern. I think the situation that arose last week has heightened the reality of it, and it is--I think Norm said it well. People had on their congressional calendar trade promotion authority, et cetera, et cetera, et cetera, the appropriations, and it's so much more pleasant to focus on that than this. And I think the momentum of those has carried people forward.

My own belief, again, is I don't know of anything more important we can do. Now an option is, if we are fortunate and fate allows, maybe we finish up this session and we get the kind of group Norm Ornstein talked about, or the judiciary committee convenes in some special format, and as soon as we reconvene in January, we solve this problem.

It's obviously of higher urgency, I think, for Norm and I as we have thought about it than maybe for the leadership, and it's my hope--and I sure have spent a lot of time on this--that they will, especially after last week in the anthrax situation, realize this really has to be a priority, if not the priority for the whole Congress. It has to be the priority for a small group of people who will solve this problem for us.

Norm.

MR. ORNSTEIN: Let me just say, Alton, that I would hope, first of all, that the public would cut the House leaders a little bit more slack now that we've learned that two postal workers in the Washington, D.C. area have died of what appears to be anthrax from handling that mail. That, you know, their decision to leave was not a cut-and-run kind of thing to do.

You know, we can argue about whether they handled it the right way, but maybe we will cut them a little bit more slack. But I would hope that we would cut them a little bit less slack now because what this underscores is that we have a serious problem here, and I'm afraid that, you know, my sense of the leaders, I would put it a little less delicately than Congressman Baird did, is that they just don't particularly want to deal with this kind of thing. And so they won't unless there's something more that pushes them to make it a top priority, or maybe the top priority.

If Hastert and Gephardt stood up and said, by God, something's got to be done here, it will be done. If they don't, it won't be done, and I think it would serve them very well now because it would once again underscore that their decision to step away from the office buildings a day early was a prudent thing to do, that we're talking about serious risks here, not theoretical concerns.

REPRESENTATIVE BAIRD: Let me add to this. Dealing with this is in no way an act of panic, nor is it an act of cowardice. It is an act of courage. Our government and the members of our government have looked squarely in the face of the possibility of our own demise, and we have said that is something we accept, we will do everything we can to prevent that, for our own sake, but more importantly for the sake of the country. But if that happens, we have taken the necessary steps to ensure that our country will persevere, and that's an act of courage.

MR. MANN: You've got the term of art that you used a while ago, this would be a living will for Congress.

REPRESENTATIVE BAIRD: Absolutely nice.

MR. MANN: That's nice, a very nice suggestion. I think we moved a far distance from the kind of macabre sounding title, "What If Congress Were Obliterated?" to a very serious and responsible discussion of our obligations to provide for continuity of constitutional democracy. And let me extend appreciation to our panelists, to Norm, to Brian, and to Bill, and to thank all of you for coming. We are adjourned.

[Applause.]