House Needs Plan to Replace Members Killed in Terrorist Attack

Some people in Washington play the role of a "scold" – telling politicians what they don’t want to hear on a regular basis.

Two of my favorite scolds are Washington Congressman Brian Baird and American Enterprise Institute scholar Norm Ornstein.

Every year on the anniversary of the 9/11 terrorist attack on the United States, Baird and Ornstein once again mount their soapboxes about Congress’s unwillingness to prepare for what could happen if there were a terrorist attack against Congress itself. Baird and Ornstein are right, and the collective Congressional leadership (Democratic and Republican) is wrong for ignoring what they have to say.

Let’s assume that Congress is convened in joint session (all members of the Senate and House gathered together in the House Chamber) to listen to the president’s annual State of the Union address or to hear from some foreign head of state. Let’s then assume that there is a terrorist attack on the Capitol Building that kills or incapacitates the vast majority of the senators and congressmen present.

Under our Constitution, governors are empowered to appoint replacement U.S. senators from their state when a vacancy occurs. Because of a quirk in our Constitution, there is no comparable power given to governors or anyone else to appoint replacement U.S. Congressmen when a vacancy occurs. U.S. House seats can only be filled by special elections which often take months to conduct.

If the president is killed, there is an existing statute setting out the line of succession which includes members of the president’s Cabinet. Because of this, one Cabinet member (on a rotating basis) is always absent when the president addresses a joint session of Congress.

Ever since the terrorist attack on 9/11, Congressman Baird and Norm Ornstein have been leading the call for a realistic solution to the problem we would face if most of the U.S. House were killed or incapacitated in an attack. The reason that this is so important is that without a House, the legislative branch would be paralyzed (laws require passage of both houses to take effect) and we might wind up with a de facto dictatorship by the executive branch.

Both have correctly taken the position that there is only one realistic solution to this problem -- a constitutional amendment that would establish a procedure for prompt orderly succession in House districts. One approach would be to give state governors the same power of appointment that they now have when a Senate vacancy occurs. Another approach would be to permit current House members to designate in advance temporary replacements until special elections can be held.

When the Republicans controlled the House, opposition to a constitutional amendment was led by then Judiciary Committee Chairman Jim Sensenbrenner who took the position that no one has ever served in the House by appointment in the history of our country and that we shouldn’t change this tradition even in the time of a national emergency. House Republican leaders refused to take on a powerful committee chairman on this issue.

Now that Democrats control the House, the issue has simply been given benign neglect -- it’s not a priority for the current leadership since they have more important matters to deal with.

Congress did pass some half measures during the past six years -- one shortened the time for special elections to be conducted (not particularly realistic if the country is in chaos) and one giving the House Speaker the right to reduce a quorum for conducting business following a terrorist attack (currently 218 members). The latter is of dubious constitutionality and might render all Congressional actions subject to court challenge -- just what we need during an emergency.

I have to admit that I, too, have been a scold on this subject during the past six years. I co-chaired a special House task force with former Rep. Chris Cox on this matter following the 9/11 attack. We were ignored by the House leadership then just as Baird and Ornstein are being ignored today.

It’s time for the Congressional leadership to get its head out of the sand on this important issue. Sometimes scolds are right.

Respond to the Writer

Martin Frost served in Congress from 1979 to 2005, representing a diverse district in the Dallas-Ft. Worth area. He served two terms as chairman of the House Democratic Caucus, the third-ranking leadership position for House Democrats, and two terms as chairman of the Democratic Congressional Campaign Committee. Frost serves as a regular contributor to FOX News Channel and is a partner at the law firm of Polsinelli, Shalton, Flanigan and Suelthaus. He holds a Bachelor of Journalism degree from the University of Missouri and a law degree from the Georgetown Law Center.