WITH THE RIGHT TIMING AND PLACEMENT--a joint session of Congress, for instance--a weapon of mass destruction could kill dozens or hundreds of senators and representatives. What would happen then?
How Congress would function in such a state of emergency was the subject of an October 22 panel discussion hosted by the American Enterprise Institute and bearing perhaps the most startling title in the history of Washington gabfests--"What Would Happen If Congress Were Obliterated?" The idea for the forum was based in part on some recent articles by Norman Ornstein, Roll Call columnist and resident scholar at AEI. In a Washington Post editorial Ornstein describes a possible post-attack scenario: "Even if it could operate with 30 or 40 members, imagine the strain on the system if Congress passed sweeping anti-terrorism laws, huge new appropriations, even a declaration of war, with most of the country underrepresented, or with a radically different partisan or regional makeup."
Unpleasant as this may sound, Ornstein suggested an even more dire scenario. Because the House of Representatives must assemble a majority of those "elected, sworn in, and living" to form the requisite quorum for passing laws, an attack in which a significant number of congressmen are incapacitated yet still alive could leave the House of Representatives without a quorum. While deceased members of the Supreme Court, executive branch, and Senate can be replaced quickly by appointment during a crisis, the process of replacing House members takes longer.
Senators killed or incapacitated, for instance, can be replaced by gubernatorial appointment. Members of the House of Representatives, however, can only be replaced through special election, a process that normally takes anywhere from three to six months. In an emergency, a special election could conceivably be held in three to four weeks, still a long time to wait during a national crisis.
A solution has been proposed by Brian Baird, a Democratic congressman from Washington state. To expedite the process of congressional succession, Baird suggests a constitutional amendment: Governors would be given the power to appoint temporary replacements for dead or incapacitated representatives if more than a quarter of the members of the House were killed. The temporary replacements would serve for 90 days, during which time states would hold special elections for the seats.
Although still in the early stages of development, Baird's amendment already has a "sizeable number of cosponsors," Ornstein said. And, although he "hate[s] constitutional amendments," Ornstein supports the Baird amendment as "the only prudent thing to do."
Baird and Ornstein raised a number of other issues Congress needs to address to prepare for doomsday scenarios. Biological contamination of the Capitol building might require Congress to assemble elsewhere. While federal law gives the president the power to convene Congress outside of the Capitol, such contingency plans have not been fully developed. Current law also does not allow for members to vote from remote locations, yet they might need to if the Capitol were destroyed. Such provisions are not included in Baird's amendment, but he suggests they can be dealt with through statutory means.
Baird says that his amendment would send a powerful message to our adversaries. "Even in the worst-case scenario," Baird said, "even if they destroy the Capitol, our government will persevere."
Unanswered at the conference: What would happen to Norm Ornstein if Congress were obliterated?
Bo Crader is an editorial assistant at The Weekly Standard.
