House Democrats had hoped this week to establish a proxy voting system that would enable it to act when a crisis like the current COVID-19 pandemic prevented many members from meeting safely in person at the Capitol.
But Republican opposition prompted Speaker Nancy Pelosi to delay action pending a bipartisan study of Rules Committee Chairman Jim McGovern’s plan to let House members designate fellow members to cast their votes if they were unable to attend.
The impasse shows how partisan gridlock and resistance to institutional change make it hard for Congress to deal with any but the most urgently needed measures. The Republican-controlled Senate isn’t even considering proxy voting.
And McGovern’s proposal did not even address the far bigger and more serious potential problem: an epidemic or terrorist attack that wipes out a majority of House members, making any business impossible to transact.
Unlike proxy voting, this is uniquely a problem for the House of Representatives. The Constitution gives governors the authority to name temporary replacements for Senate vacancies, pending the next general election or, in some cases, a special election.
But it provides no way for quick naming of House replacements, stating that “when vacancies happen in the representation of any state, the Executive Authority thereof shall issue writs of election to fill such vacancies.”
Under current procedures, if a disaster wiped out more than half of the House, the necessary special elections to restore its membership would take an average of four months, and many states would take longer. For example, the special election to fill the California seat that Rep. Katie Hill resigned last November is scheduled May 12, leaving the district unrepresented for six months.
It’s been nearly two decades since the Sept. 11 terrorist attacks first focused public attention on this problem. One of the four hijacked planes was headed for the Capitol building before passengers forced it off course and it crashed in Pennsylvania.
In 2003, the bipartisan Continuity of Government Commission, co-chaired by former Sen. Alan Simpson of Wyoming, a Republican, and former White House Counsel Lloyd Cutler, a Democrat, called for procedures to allow temporary replacement of House members in the event of mass incapacity.
Sen. John Cornyn, R-Texas, subsequently introduced a constitutional amendment giving governors the option of replacing killed or incapacitated members by special election, emergency interim appointments or selection from a so-called “living will” of potential successors prepared by each sitting House member.
Congressional leaders showed little interest in the idea, so nothing major happened. In 2005, Congress did pass a House amendment as part of an appropriations bill that calls for special congressional elections within 49 days if 100 or more members are killed or incapacitated.
But Norm Ornstein of the American Enterprise Institute, who has long championed the need to deal with the problem, said the measure’s specifics make it “virtually impossible to carry out and would still leave the chamber inoperable for a critical 45 days after a devastating attack.”
In a 2017 book on secret government plans for dealing with emergencies, “Raven Rock. The Story of the U.S. Government’s Secret Plan to Save Itself —While the Rest of Us Die,” author Garrett Graff said one explanation for the failure of lawmakers to confront the issue of a decimated House of Representatives may be that secret plans already exist to deal with it.
“One informed theory holds that the secret procedures have a specific, defined role for a small, preselected set of congressional leaders —perhaps as small as the four party leaders of the two houses —who would serve as a ‘rump’ or ‘skeleton’ Congress until a full group could be established months later and would, in the absence of the larger body, serve to approve or disapprove legislation and executive actions,” Graff wrote.
He likened them to the “gang of eight” congressional leaders who are supposed to be kept regularly apprised of top-secret intelligence and military developments.
Whatever the reason, nothing has been done. In a recent Washington Post op-ed, Ornstein and fellow political scientist Thomas Mann of the Brookings Institution, citing the COVID-19 pandemic, expressed hope that “this jolt will finally trigger a desire among lawmakers” to act. But House GOP resistance to the McGovern proposal and Senate Majority Leader Mitch McConnell’s flat rejection of the idea shows how hard this will be.
Interestingly, many foreign governments have already addressed this problem. A recent report by the Global Legal Research Directorate of the Library of Congress concluded after studying 36 foreign jurisdictions that legislatures in “a vast majority of countries surveyed … have adopted preventative measures in response to the public emergency posed by the COVID-19 pandemic.”
One problem here is that lawmakers regard these issues as less immediate than the need to help people or businesses that have suffered from the health or economic effects of the coronavirus pandemic.
While that is understandable, one can hope that, once the immediate crisis passes, both parties will address these issues and try to enact a solution. Unfortunately, the history of the two decades since Sept. 11 offer little hope that will happen.
Carl P. Leubsdorf is the former Washington bureau chief of the Dallas Morning News. Readers may write to him via email at: firstname.lastname@example.org.