Chairman Ney, Ranking Member Larson, Members of the House Administration Committee, I applaud you for holding hearings to address an issue critical to the institution of Congress, namely how Congress could reconstitute itself after a catastrophic terrorist attack.
I am a resident scholar at the American Enterprise. With Tom Mann, I am also senior counselor to the Continuity of Government Commission, a bipartisan, private commission made of people who have served in the public trust at the highest levels of government. Our commission’s report has received significant attention in Congress, so I will only briefly summarize our recommendation, and I will spend the majority of my time considering the Sensenbrenner bill, which the sponsors have introduced as an alternative to our commission’s recommendation. But let me stress at the outset that my colleagues and I endorse strongly the idea of having expedited special elections in the event of a national catastrophe. I do not believe that the Sensenbrenner bill is workable, but I hope that the committee can work toward a bill that will create genuine, open and competitive campaigns and elections under horrific circumstances. But I hope just as fervently that the committee, and the Congress, reject the notion that any workable and reasonable special election plan is sufficient to deal with the gap in constitutional governance that will occur in the event of a catastrophic attack on Washington and Congress.
The problem we face is that a large-scale attack could cripple the ability of Congress to function. Speaking before members of this body today, I don’t think that I can overstate the importance of having a Congress in a time of crisis. The alternative is to throw all of the founding fathers’ ideas about checks and balances and separation of powers out the window. Put another way, a nation without a Congress is a nation under a form of martial law or trusting the president to do the right thing without any check. No doubt, the United States under such circumstances would have the most benign form of martial law, but it would be martial law nonetheless. Everyone here today believes that Congress should be reconstituted quickly.
The problem facing a Congress after an attack is twofold. First, the Constitution provides only one method for filling vacancies in the House of Representatives: a special election. And special elections over the past thirty years have taken on average four months to conduct. With potentially hundreds of vacancies, the House would not be able to meet its majority quorum laid out in the Constitution. Or alternatively, it might try to function with much less than a majority based on a more lenient interpretation of the quorum as per House precedents. Either alternative is odious: no Congress on the one hand, or a Congress acting with most of the country unrepresented on the other. Second, neither the House nor the Senate has any effective procedure to deal with incapacitated members. In an attack that severely injured many members, there would be no effective way to fill these effectively vacant seats until the member recovered, died or the term of office ended. In this case, no quorum could be reached even under lenient House or Senate precedents.
The answer that the Continuity of Government Commission proposed unanimously was a constitutional amendment that would give Congress the power after a catastrophic attack to remedy this problem by providing for emergency interim appointments that would fill vacancies until special elections could be held. These appointments could also be made to fill in for incapacitated members until they recover. This solution would allow Congress to begin to function nearly immediately after an attack and for special elections to go forward as expeditiously as possible to elect members to serve out the remainder of the term.
The sponsors of the Sensenbrenner bill recognize the problem of mass vacancies in the House (but not large scale incapacitation), but they propose an alternative solution. They believe that they can reconstitute the House after a few weeks with a federal mandate that states conduct special elections in what amounts to seven days after candidates for office become known to the public.
Our commission carefully considered this alternative and rejected it. The commission agrees with Chairman Sensenbrenner that Congress has the power to impose a federal mandate on the states that they hold special elections within a short period of time. However, we do not believe that elections on the proposed timeframe are possible, nor would they be true democratic elections.
Elections Cannot be Held in 7 Days, 21 Days or Even 30 Days. The commission does not believe that elections can be held in the short timeframe that the Sensenbrenner bill proposes. The bill requires parties to choose candidates for election within fourteen days and allows another seven days for a general election to take place. Even if there were just one special election occurring in the country under non-emergency conditions, twenty-one days from start to finish for an election is not sufficient. It would be hard to even print the ballots in the seven days allotted. There would be no way to mail out and receive absentee ballots in time. Military overseas voters would be disenfranchised. Unregistered voters would not have time to register. In addition, minor parties and independents might be left off the ballot. Finally, what sort of choice would voters have if two candidates, previously unknown to them, were thrust in front of them for a few days before voting?
21 Day Elections Would Mandate Election Procedures that Many States Oppose.
Even a bill requiring elections within sixty days, never mind the twenty-one day directive the Sensenbrenner bill calls for, would require major changes in the way that states hold elections. To achieve their end of very expedited elections, the Sensenbrenner bill’s sponsors would mandate that states forgo party primaries. There would be no time to do so. Party bosses would select the candidates. There are some states that choose not to have party primaries in holding special elections, but many states would view such a procedure as fundamentally undemocratic and inconsistent with the political culture in their states. Should the federal government mandate that states give up primary elections? Independent candidates, under this procedure, would be shut out and many states would have to rewrite their laws regarding ballot access for minor party candidates.
The Sensenbrenner bill would also require that all states adopt same day registration or disenfranchise new voters or those who had moved after the last election. There would be no time to allow new voters to register in advance and for states to enter newly registered voters on to voter rolls. Some states, like Minnesota have same day registration. Many do not, and they have consciously chosen not to adopt same day registration, often for fear of election fraud or confusion on election day. Should the federal government mandate that states adopt same day registration for special elections?
There are numerous other differences among the states that would also be overridden by a federal mandate: laws about how candidates and parties qualify for the ballot; requirements to mail out voter guides; campaign finance laws; laws requiring ballots for non-English speakers; civil rights laws, etc.
An Untested Set of Election Rules for Catastrophe Will Lead to an Election Debacle. The Sensenbrenner bill mandates a brand new set of election rules and regulations for disasters, procedures that will never be used unless a disaster occurs. Election administrators will tell you that the introduction of new voting procedures, machines and poll locations leads to significant increases in voter error and election problems. If you ask voters, poll workers, candidates and election administrators to participate in elections that are foreign to them, many mistakes will be made. Take for example, the issue of same day registration mentioned earlier. Would a state that had never used same day registration for voting be able to implement such a system after an emergency? Would it even have the computer systems necessary to do the job? On such short notice, would most voters be able to vote at their traditional polling place? Unlikely. Would voters vote on the same type of equipment as they were accustomed or would expedited elections and consolidated polling places place many voters in unfamiliar surroundings? The alternative to this chaotic situation might be to mandate that states have very expedited elections all the time, with a mandate that they have same day registration and no primaries as well, so that when the day came to have emergency elections, states were prepared. Either course is dangerous. Either we have a tremendous federal intrusion into the state administration of elections or we leave states woefully unprepared to comply with unrealistic deadlines and using unfamiliar election practices that will lead to significant errors.
What if 7 Day Elections Just do not Work? The Unforeseen. I believe that the Sensenbrenner bill has unrealistic deadlines for holding special elections. But even the proponents of such an approach have to recognize that unforeseen circumstances might significantly delay elections. What then? Congress would have no other way of getting back its membership. Imagine that our transportation system is compromised by an attack making the printing of ballots or transport of voting machines impossible for a time. Or imagine that there is a major power outage that would prevent the use of voting machines or statewide voter registration lists. What if the mail system was compromised, as it was during the anthrax attacks two years ago? How would absentee ballots be mailed out or sent in? The best laid plans of election administrators might be foiled by contingencies beyond their control. If there were interim emergency appointments, Congress could function until circumstances allowed the holding of elections.
Temporary Appointments and Special Elections Go Together. One particularly deceptive claim has been made about the commission’s proposal for emergency interim appointments. Some claim that it would “ban” voting. Quite the opposite. Emergency appointments would allow real democratic elections to go forward immediately. Within hours after an attack, special elections could be commenced. But they would go forward under a reasonable timetable that might differ from state to state. The timetable should be able to be expedited somewhat from the contemporary average of four months. But each state, while moving as rapidly as it can consistent with its circumstances after a catastrophic attack, would in the meantime be represented in Congress by emergency appointees, who would be replaced immediately as soon as the results of special elections were certified.
I applaud the committee for taking up such an important subject. This committee is particularly well suited to deal with the issue before you today as it has jurisdiction over election matters. The members of this committee know from the thorough and deliberative process they went through to pass the Help America Vote Act that elections are not simple matters and that they involve a complex interplay of voters, poll workers, administrators and local, state and federal officials. Many of those same issues that you debated in election reform are relevant to a proposal for expedited elections. I urge you to continue your efforts to ensure that Congress can quickly reconstitute itself after a terrorist attack. A solution to this problem is one we hope we never will employ, but if we are faced with a catastrophic attack on Congress, we owe it to the rest of the nation that we have plans in place for Congress to function, not to sit idle at a time of national crisis.
Norman J. Ornstein is a resident scholar at AEI.
