The topic of this episode is, “What Happens If Congress Gets Blown Up?”
On a sunny Tuesday morning 25 years ago, Congress reconvened. Speaker Dennis Hastert called the House of Representatives to order, and then the Illinois Republican recognized Representative Earl Blumenauer. The bow-tie-wearing Democrat from Oregon then began delivering a speech criticizing the marketing of tobacco.
He was the first of three members who were queued up to give speeches that morning. Only a handful of representatives were in the chamber. Most lawmakers were in their personal offices preparing for a full day of votes, hearings, and meetings, which would begin at 10:00 AM. Much the same was happening across the Capitol, where senators and their staff were preparing to start the day’s business.
But by 9:45 AM, legislators were fleeing the Capitol, and Hastert, the leaders of the Senate, and other top legislative branch officials were being whisked away to an undisclosed location in Virginia by the Capitol Police and their personal security details. Planes had struck and set aflame the two World Trade Center towers and the Pentagon.
United Airlines Flight 93 out of Newark, New Jersey, with enough fuel to carry it to San Francisco, had also been hijacked, and it was heading toward Washington, DC, and possibly the US Capitol. Were it not for the brave passengers of Flight 93 who stormed the cockpit and brought the plane down in Shanksville, Pennsylvania, the federal government could have been crippled for months.
A quarter of a century has passed since that terrible day, September 11, 2001. Yet, unfortunately, it appears that Congress still is not fully prepared to recover and to resume its duties should a large number of its members be killed or disabled. This is a problem, and it is a problem that should have been solved long ago, because the legislative branch is the heart of our federal government, and our system will not work unless we have a fully functioning Congress.
To discuss this issue, I have with me today my colleague, John Fortier. He is a senior fellow here at the American Enterprise Institute, the author of many books, and, critically, he served on two commissions studying the continuity of Congress.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.
And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I am your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.
John, welcome to the podcast.
John Fortier:
Thanks for having me, Kevin.
Kevin Kosar:
Before we get into the meat of this topic, let me first ask: how did you become an expert in the rather morbid but nonetheless critical issue of the continuity of Congress?
John Fortier:
I was sitting at my desk at AEI, which was actually in a slightly different location than it is today, a couple of blocks away. Like many people, we had heard some report—we had some little televisions on—that maybe something had happened at the World Trade Center.
You’ll remember that many people thought it was just a small plane and that a pilot had maybe accidentally crashed into it. It seemed like a story you should look at quickly. And then 25 minutes or so later, we heard that a second plane had hit the other tower, and all of a sudden everybody’s impression of what was happening changed dramatically.
I won’t go through the whole day in Washington because there was a lot of confusion. But in the days after, several of us—I, along with my colleague at AEI, Norm Ornstein, and my colleague at Brookings, Tom Mann—started thinking about not just the horrible day that 9/11 was, but the possible real implications of our institutions not functioning after an attack that would take out Congress or the presidency.
That’s where we really started to think about some of these continuity of government issues that are more than just logistical issues; they are deep in our Constitution and in our legislation.
Kevin Kosar:
September 11, 2001 was a terrible day, and it was one that showed that Congress really was unprepared for an emergency or mass casualty event. This was despite the fact that there had been acts of violence at the Capitol in the past, such as shootings.
To take one small matter, the House of Representatives had started its work day and was unsure about how to formally recess, right?
John Fortier:
Yes, I think that’s right. You saw that in the House itself, with some question about how the House might recess.
But more deeply, you realize that some of these continuity of government questions are interrelated. The Speaker of the House is in the line of succession; therefore, he was getting grabbed by the Secret Service or other people to bring him away safely to be protected. Certainly, we all remember the president being briefed by his chief of staff, Andy Card, in the middle of an event. The Supreme Court was meeting not only by itself but also with the Judicial Conference, the heads of all of the circuits, in the Supreme Court building. All of a sudden, the chief justice had someone whisper something in his ear, and he just stood up, walked out, and disappeared because, while he was not in the line of succession, he needed to be in a safe place.
And then in New York City, we had an election going on. We had a primary election, and people had already started voting. What do you do? How do you proceed? They went to court and essentially had to stop the election and then restart it later. These aren’t the deepest problems, but there were a lot of emergency, quick decisions that had to be made because we’re not prepared for some of these very dramatic events that come at us very quickly.
Kevin Kosar:
To follow up on that, you mentioned the Speaker being in the line of succession, so obviously there’s an importance to protecting the Speaker. But the Speaker also is the person who is supposed to preside over the House.
And were it not for the brave individuals on Flight 93, that jet could have gone slamming into the US Capitol, which could have devastated the place and left Congress with no place to convene. As I understand it, there was also an issue of not having prepared a backup place that could readily be used to get the legislative branch up and running again, which is important because Congress has to pass the spending laws. Congress has to pass all the laws, quite frankly.
John Fortier:
You’re right, and there are some technicalities that had to be worked out, and there were some logistical backups for what Congress might do. But I think what we’re really going to get to, at the heart of it, is a constitutional question: if the House itself had been hit in a significant way, could it have functioned? How would it have functioned?
On your original point about some of the logistical things, I remember one of the members of the Continuity of Government Commission, which we later formed, was the former Speaker of the House, Tom Foley. For a long time, we had a backup chamber that was built in a bunker at the Greenbrier resort in West Virginia. That was a very closely held secret. Eventually, when it was seen as not as needed, the Washington Post broke the story in the ’90s. But when Foley was either majority leader or Speaker, he knew about it, and one of his members came to him and said, “You know, this is a problem. We need some secure place where we can all meet.” Foley couldn’t tell him about it, so he said, “Well, I’ll appoint you to a task force to look into this, because it’s a really good question.” So we had been thinking about some of the logistical things. But I do think we should transition.
There are all sorts of continuity issues, but the really big one is at the heart of Congress. Again, take that fourth plane. We didn’t know for sure, but we suspected on 9/11 that it was headed to the Capitol, and later that was confirmed. If that plane had hit at a time when a significant number of members were in the chamber, and it killed or incapacitated large numbers of the House, that’s a problem that our Constitution doesn’t deal with well.
The primary issue is that, unlike the Senate, there is no way to quickly replace a deceased member of the House of Representatives. You have to have a special election, and those elections take, by our calculation, a number of months on average. It’s hard to speed them up too much.
One possibility you can imagine is that so many members are dead that you don’t even have a quorum to proceed. There are some arguments about what the quorum is, but the Constitution says it’s a majority. Or you have a body that is very decimated and doesn’t look anything like the body before. The big Republican majority now turns out to be 20 members of the House from the other party or from one state, and it looks illegitimate.
And that is a period of time when we really need not only the president reacting to this crisis and attack, but we really could use Congress for appropriations, for authorizing the use of force, for creating new institutions, and yes, for checking the president, but also for backing the president up and having a response. We’re worried that our current system just doesn’t allow that to happen in these terrible circumstances.
Kevin Kosar:
There is so much to unpack there. Let’s start with the Senate, which you indicated is a less nettlesome problem. Obviously, if a bunch of senators die, that’s a terrible thing.
But as far as the chamber being able to get back up and running, why is it that the Senate can replace people more rapidly than the House of Representatives?
John Fortier:
It is sewn into the Constitution. States can give governors the power to make a temporary appointment. Of course, Senate terms are six years, and “temporary,” at least the way our courts think about it, is probably an amount of time that lasts until the next general election—up to, or maybe a little more than, two years, after which you have an election to fill the rest of the term.
States don’t have to do that. We have a few states, and some states have gone in and out of this, that just say, “Don’t make the appointment; have a special election.” But that’s a small number of states. In most states, even if the worst happened and all of the senators were killed, you could have new senators appointed by their governors to serve and to perform the functions of the Senate.
Some people get to the question of, “Well, what about members who are incapacitated?” That’s actually a more difficult question. But the heart of the problem is that a number of people dying either keeps the House from running or really affects its character. The House looks so different that maybe it’s illegitimate. That is the heart of the problem, and it’s not as much of a problem in the Senate because the Constitution gives states the power to allow their governors to make these appointments until the seat is filled by a popular election.
Kevin Kosar:
We have a senator serving, Jon Husted, Republican of Ohio, who holds his position because he was appointed to it by Governor Mike DeWine of Ohio. And it’s not because of a death; it’s because JD Vance, who held the seat, moved on to the vice presidency, and so a new person is put into place. Yes, he has to stand for reelection, but there wasn’t a hole in the Senate where a seat was left vacant for a long period of time. These days, when we have very tight partisan majorities in both chambers, missing members have greater and greater consequences.
So the Senate is in a better position to get up and running after a mass attack. But as you hinted, there are complex questions around what happens if somebody is in a coma. How do you replace that person? We’ll set that aside and admit that it’s a nettlesome, complicated situation.
But then we get to the House, which you indicate is a bigger problem. And listeners may infer that the issue with the House is that the Constitution does not have the same language for the House as it does for the Senate, right?
John Fortier:
Absolutely. The only way that a vacancy in the House—a vacancy created by a death, by a person resigning, or by going to another office—can be filled is by a special election, and the person elected serves out the rest of the two-year term.
Again, these are not the easiest things to hold quickly, especially in our current way of running elections. We did some analysis at the time, and I think more recent analysis shows about the same thing: if you have an unexpected House vacancy, one that you haven’t been given notice of, it takes on average more than four months to hold the election.
You need a little bit of time for people to file. You might have a primary. You have a second election. We have rules about sending ballots overseas to military voters 45 days before an election. So it’s hard to think of an election taking less time than that. If you think about, God forbid, 100 members being killed—or more than you need for a quorum, say 225 members killed—you could imagine not being able to get members into those seats for four or five months. That might mean four or five months where we don’t even have a quorum, and the House doesn’t operate at all.
Or, again, we can get into more complicated scenarios where some people have what I would call a creative understanding of the quorum, which I don’t agree with: that maybe 20 or 25 members could somehow say they were the House. That sounds great—we’ve got a continuing House—but it might be an extremely different House than the one that existed. It wouldn’t represent most of the country. And it would have powers like passing legislation and doing the normal things, including electing a new Speaker, who is part of the line of succession.
So there are problems with the fact that we would not be able to fill those vacancies for quite a few months. And if there are many of them, it adds up to very significant continuity of government problems.
Kevin Kosar:
I would be remiss if I didn’t remind listeners that if you turn back the clock and look at what the Founding Fathers were thinking about when they were hammering out the agreement that became our Constitution, a big part of that was concern about excessive executive power. So the power of the purse and the power of the sword were assigned to Congress, along with a whole lot of other responsibilities. The idea that you have an attack on Congress and Congress is disabled is a big deal for the machinery of government.
I should also remind listeners also that the 9/11 attacks happened not long before the end of the fiscal year, and Congress had a lot of appropriations bills still to pass. If you cannot get the people there who run the legislative branch, suddenly you don’t have any money to run the government. How are you possibly going to declare war, put money toward rebuilding, put money toward hitting back against those who hit you, or deal with whatever else you have to deal with? For all our scoffing at Congress and for all of our disappointments, it really is a big deal if Congress is not operating.
Now, you mentioned the word “quorum.” A lot of listeners are certainly familiar with the term, but others are not. When you speak of the House, what do you mean by a quorum, and why is it even part of this discussion?
John Fortier:
You can think of a quorum as relevant to any sort of body. Today, we have 435 members of the House and 100 members of the Senate. When we were drafting our Constitution, we had different numbers then, but there was a question of what percentage of the body would be appropriate to be able to go forward and say, “Yes, Congress is really here. It’s legitimate. It’s going forward.”
There were some precedents from the House of Commons in Britain where maybe a small number would be okay to go forward. In the debates, the founders were a little worried about Congress going forward without a significant number of its members present. For one, we had a big country, so people had to travel from far away. What if a group just showed up—maybe the people from Maryland and Virginia—and said, “We’re ready to go. We’re going to pass laws. We’re going to do all the things Congress does because there are 50 of us here out of the 435”?
They didn’t want that. To show a certain legitimacy, they wanted to make sure that the body met this quorum requirement. What they created and put in the Constitution, for both the House and the Senate, is that a majority of each body is the quorum.
I’m getting ahead of the story, but there was an argument, partly because of some House rules and precedents over the years, which were really on insignificant matters, that maybe we could play with that a little and say it’s a majority of those who are living and sworn. But the real intent of the Framers was to set a reasonably high quorum requirement. They weren’t going to let the House operate—at least as long as somebody was there to object—unless at least a majority of the body was present before it could act, take votes, or do the things that would be seen as this representative body acting.
Kevin Kosar:
At first blush, the quorum might sound like some sort of little technical parliamentary thing. But as you’ve pointed out in some of your writings, this strikes at the very basic question of the kind of government you have. If you’re trying to set up a representative government, and part of the requirement is that people be drawn from districts and states all over the country, and they’re going to wield the massive power that the federal government has, you’ve got to make sure that it’s a representative body.
To take a silly illustration, conservatives might be alarmed if only California’s and New York’s representatives showed up and tried to pass laws in the House to the exclusion of everybody else. Liberals might be freaked out if just representatives from Alabama showed up and decided to wield the full power of the House of Representatives. You would have outputs that would be really unrepresentative and blatantly contrary to the concept, and probably the provisions, of the Constitution.
So it sounds like we’re in a pickle. We can get the Senate up and running with the help of governors, but we’ve got a constitutional provision that says you have to elect people to the House. So what’s the way out?
John Fortier:
Without giving the full history, we did some thinking about this ourselves after 9/11. We brought in congressional, legal, and procedural scholars and started thinking about this, and ultimately we founded a private commission, an AEI-Brookings commission called the Continuity of Government Commission. It included former Speakers Foley and Gingrich and a number of people who had served at the highest levels of government in all three branches, and we really tried to come to some consensus.
There were a lot of issues, but this question of Congress is at the heart of it. Even early on, before we had agreed on the commission, we started to see what the issue was. We need some way for the House to have people fill those seats quickly. Of course, we want there to be elections down the road—in the four months that it takes—to fill those seats more permanently. But we could really use something like what the Senate has: a mechanism for getting people into the seats who represent those districts so that a relatively full and representative House can play its proper role in the constitutional system.
I’ll add one other thing. We were looking at history, and it wasn’t until we had really started settling on a solution that we realized that Congress had actually thought about this in the 1950s and ’60s. There was significant debate about this during the early days of the Cold War, when there was worry about nuclear war or some mass catastrophic event. The Senate passed constitutional amendments three times that did something like what we recommended.
We had a later commission, so we had slightly different versions of the recommendation, but the heart of it was this: we needed a mechanism for appointments to be made to the House temporarily until the states could hold elections to fill those seats more permanently.
In the first commission, we said we should only do this if there were—we didn’t have an exact target—more than 100 deaths or a very large number of deaths, and then this would kick in. In the second commission, we thought maybe it would be good to do it more regularly. It can be a problem if even five members are killed and that switches the majority.
Whatever the case, the key issue is this: we want seats filled so that they are not vacant at a time of crisis, and we want them filled until the state can hold an election, at which point the elected representative will take that place. We can argue about the mode of appointment, whether by a governor or by another method. But we really need some method of appointment that can happen quickly, and that gets us through those three or four months with a relatively normal House, given the very abnormal circumstances we’d be in.
Kevin Kosar:
It’s been 25 years since that dreadful day, September 11, 2001, and it seems Congress has done some things to try to better prepare itself. I understand a law was passed that tries to get states to hold their special House elections more rapidly. It seems to have had limited effect in goading that sort of activity.
I understand that now, each time there is a new Speaker, the Speaker is supposed to create a list of people who could serve as backup Speaker, and that flowed from some of these concerns. And the House can suspend business a little more promptly, without the confusion it previously experienced. Maybe a couple of other things were done.
But the big thing has not been done. Is there an explanation for why? Is there some sort of fundamental disagreement—a fear that if we make this constitutional fix, we’re going to open up some terrible can of worms? Or is it just folks saying, “We don’t really need to do this. We can work through the quorum problem, and it’ll be fine”? What’s the holdup? This doesn’t seem that controversial, at least to an outsider.
John Fortier:
I will say this: yes, there have been some things done, and a few of them, I think, are good. But I also think there were a couple of things that people thought would fix the problem that we think are inadequate and maybe even go in the wrong direction.
Unfortunately, this problem requires a constitutional amendment. We did not go into this thinking, “What a great idea. We have to recommend a constitutional amendment.” It is very hard to pass a constitutional amendment. The House really did wrestle with this in a very serious way for a while after 9/11, but some people started thinking, “That’s just too hard. We need to do something we can do through the rules or by passing simple laws, and patch it that way.”
You hinted at a couple of things, but I think they are ultimately giving people false hope and maybe even creating some additional problems. One is the idea that maybe we can speed up these elections. Great—if we could have an election in a few days, this wouldn’t be a problem. But the obvious problem is that election administrators, both then and today, realize when asked that they can’t hold elections that quickly. You wouldn’t want to have elections that didn’t allow some time for people to file for the seat and to have a bit of a campaign. Again, we have rules about getting ballots to people overseas. Maybe you could do without a primary, but a lot of states like to have primaries, and that’s their prerogative. It’s very hard to imagine an election taking less than two and a half to three months, and election officials really pushed back on that.
So we have a law on the books that is unrealistic and says you’re going to hold these elections much more quickly. They originally pushed for something even shorter and then raised it, but it’s still not reasonable. I don’t think you can really get around that problem, other than maybe speeding the elections up a little and saying we’ll be without Congress for three months rather than the four or five months we would be without it currently.
The second question is the quorum. There were some, I would say, creative people—and people on the House Rules Committee are aware of all of the House precedents, which are published, so you can look at them yourselves. There were a few small precedents that you could hang your hat on to argue that the quorum was a little more flexible than the Constitution says. We really did believe the founders wanted a majority. They didn’t want just a little group to be Congress. These precedents usually came about over an insignificant vote here or an insignificant vote there. One was, “We have a couple of vacancies because people have died, and we need to get the vote, so let’s redefine the quorum as a majority of those living.” So maybe it would be 217 in our case today. What about those who are not quite sworn in, or who are under some sort of electoral uncertainty? Ultimately, they used this reasoning to pass a House rule, which is on the books today, that I think is destructive.
Part of the rule is okay. The provisions about Speaker succession are probably fine. But essentially, the rule says that if you have a catastrophe, you call around and see who shows up. If, over the course of several days, only a small number show up—say 20 people—we say, “That’s the House of Representatives. As long as 11 of you are here to make up a majority for the quorum, we can go ahead. We can be the House of Representatives and do all the things you need to do after the attack.”
To that, we say this would be an extremely unrepresentative House. It could be dominated by a different party. It could be from one state. It could do all sorts of things. Without getting into all the details of presidential succession, under today’s law, the Speaker of the House is in the line of succession. Those 11 people might elect a new Speaker who could end up having to take over the presidency. Maybe the attack hit everybody because it happened during the State of the Union.
So you can imagine the mischief and the unrepresentativeness of this body; it points to why the founders wanted a real majority quorum. They wanted a majority of the seats, and thus a majority of the country, to be represented, not just a small fraction.
So that rule is on the books today, but we don’t really think it’s a fix. It’s just a way of saying you’re dealing with the situation without having to pass a constitutional amendment.
Kevin Kosar:
So, unfortunately, the big problem remains.
John, that is all the time we have, so let me thank you for sharing your valuable time with us and helping us better understand the continuity of Congress issue.
John Fortier:
Thank you, Kevin.
Kevin Kosar:
Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others and tell us what you think about it by posting your thoughts and questions on X and tagging @AEI. Once again, thank you for listening, and have a great day.
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