Order Code RL32031
CRS Report for Congress
Received through the CRS Web
House Vacancies: Proposed Constitutional
Amendments for Filling Them Due
to National Emergencies
August 12, 2003
Sula P. Richardson
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress

House Vacancies: Proposed Constitutional
Amendments for Filling Them
Due to National Emergencies
Summary
The September 11, 2001 terrorist attacks and concern about the possible use of
nuclear, biological, chemical, and other weapons against the United States have led
some Members to consider proposed constitutional amendments for filling House
vacancies if a significant number of Members were unable to serve due to a national
emergency.
A privately-funded group created to focus on the continuity of
government has recommended adoption of a constitutional amendment that would
give Congress the authority to provide by law for temporary appointments to fill
House vacancies after a catastrophic attack and to temporarily fill the seats of
incapacitated House and Senate Members.
During the 107th Congress, proposed constitutional amendments — H.J.Res. 67,
H.J.Res. 77, and S.J.Res. 30 — would have allowed temporary appointments to the
House under prescribed circumstances. The proposals were not the first of their kind.
For example, from 1945 through 1962, more than 30 proposed constitutional
amendments were offered to provide for filling House vacancies in the event of a
national emergency. During this period, hearings were held in the House and Senate,
and three measures were passed in the Senate, but none passed in the House.
Supporters contend that such a constitutional amendment is necessary to ensure
continuity of the legislative process and the effective representative operations of the
House. Opponents argue that it would violate a basic principle of the House, whose
Members have been directly elected by the people since its inception. Furthermore,
opponents believe continued operations of the House could be effected by changing
House rules, rather than by amending the U.S. Constitution.
Representative
Sensenbrenner has proposed another alternative to amending the Constitution. On
July 24, 2003, he introduced a bill — H.R. 2844 — that would require states to hold
special elections not later than 21 days after the vacancies are announced by the
Speaker of the House in extraordinary circumstances.
This report will be updated as events warrant. A related document, CRS Report
RL31394, discusses options proposed for temporarily filling multiple House
vacancies that could occur due to injury or death of Members resulting from
emergency situations. These include amending the Constitution to provide for
temporary appointments to the House, enacting federal legislation to require the
states to hold expedited special elections, changing House rules to allow for
admitting “Emergency Delegates” to the Committee of the Whole, and changing
House Rules to allow for “Interim Successors” pre-designated by Members.

Contents
108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
107th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Pro/Con Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Arguments in Favor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Arguments in Opposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Revisited Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Floor Votes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Policy Options
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Alternatives to Amending the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 7

House Vacancies: Proposed Constitutional
Amendments for Filling Them Due to
National Emergencies
The terrorist attacks of September 11, 2001 and recent bioterrorism incidents
have caused some lawmakers to support amending the U.S. Constitution to allow the
temporary appointment of Representatives under certain conditions. While the
Constitution requires that vacancies in both houses be filled by special elections, it
empowers state legislatures to provide for temporary appointments to the U.S. Senate
by state governors until elections are held.1 The laws of most states authorize
governors to make temporary appointments to the U.S. Senate,2 but not to the U.S.
House of Representatives.
108th Congress
In June of 2003, a privately-funded group, the Continuity of Government
Commission,3 published a report on the continuity of Congress. In the report, the
Commission recommended the adoption of a constitutional amendment giving
Congress the authority to provide by law for temporary appointments to fill House
vacancies resulting from a catastrophic attack, and to temporarily fill House and
Senate seats held by incapacitated Members.4
1 Procedures governing vacancies in the Senate were initially established by Article I,
Section 3 of the Constitution, as later amended by paragraph 2 of the 17th Amendment.
2 Exceptions are Oregon and Wisconsin, where the governor is not permitted to make
interim appointments and any Senate vacancy must be filled by special election. Oklahoma
also requires that U.S. Senate vacancies be filled by special elections, with an exception: if
the vacancy occurs after March 1 of any even-numbered year and the term expires the
following year, no special election is held; rather, the governor is required to appoint the
candidate elected in the regular general election to fill the unexpired term.
3 Organized in the fall of 2002, the Commission is a joint project of the American
Enterprise Institute (AEI) and the Brookings Institution. It is funded by the Carnegie,
Hewlett, Packard, and MacArthur Foundations. “The central issue that the commission will
address is how Congress could function if a large number of members were killed or
incapacitated.” American Enterprise Institute (AEI), Continuity of Government
Commission, [http://www.aei.org/research/projectID.16/project.asp], visited July 31, 2003.
4 Continuity on Government Commission, “Summary of Central Recommendation,” in its
Preserving Our Institutions, First Report of the Continuity of Government Commission,
May 2003 (Washington: American Enterprise Institute, 2003), p. 58.

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107th Congress
During the 107th Congress, Representative Baird introduced a constitutional
amendment that would have authorized governors to appoint persons temporarily to
take the place of Representatives who had died or become incapacitated whenever
25% or more of Representatives were unable to perform their duties. Appointees
generally would have been allowed to serve 90 days or less until a special election
was held. Each special election would have been held at any time during the 90-day
period beginning on the date of the individual’s appointment.
The proposal,
H.J.Res. 67, provided (in part) that:
If at any time 25 percent or more of the members of the House of Representatives
are unable to carry out their duties because of death or incapacity, each Governor
of a State represented by a member who has died or become incapacitated shall
appoint an otherwise qualified individual to take the place of the member as soon
as practicable (but in no event later than 7 days) after the member’s death or
incapacity has been certified.
H.J.Res. 67 was introduced on October 10, 2001, and referred to the House Judiciary
Committee. The House Subcommittee on the Constitution a held hearing on
February 28, 2002.5 No further action on the measure was taken. The resolution had
86 cosponsors.
On December 20, 2001, Senator Specter introduced a similar proposal, S.J.Res.
30. It would have provided for the appointment of temporary Representatives by
governors if 50% or more of Representatives died or were incapacitated. Further, it
would have required that the appointee be of the same political party as the Member
who had died or was incapacitated.
The measure was referred to the Senate
Committee on the Judiciary, Subcommittee on Constitution. No further action on the
proposal was taken.6
A third proposed constitutional amendment, H.J.Res. 77, would have authorized
Congress by law to provide for the temporary appointment of Representatives if 30%
or more of House seats became vacant because of death or resignation. The proposal,
which was introduced by Representative Lofgren on December 5, 2001, was referred
to the House Committee on the Judiciary, Subcommittee on the Constitution. No
further action on the measure was taken.6
5 Hearing transcript is available online at U.S. House of Representatives, Committee on the
Judiciary,
Subcommittee
on
the
Constitution,
Hearings
and
Markups
[http://www.house.gov/ judiciary/constitution.htm], visited July 30, 2003.
6 While the hearings held by the House Subcommittee on the Constitution in February 2002,
focused on H.J.Res. 67 some of the provisions and concepts in S.J.Res. 30 and in H.J.Res.
77 were discussed by some of the witnesses who testified.

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Pro/Con Arguments
Arguments in Favor. Supporters contend that the possibility of catastrophic
losses in House membership warrants taking precautions to ensure that the House
could continue to operate effectively during a national emergency. While no single
proposal can address all of the difficulties that might arise at such a time, proponents
of such measures assert that allowing for temporary appointments to the House
would help to ensure each state’s representation in that body, even if a significant
number of Members were suddenly killed or incapacitated.
In addition, if areas other than the District of Columbia were attacked and
severely damaged, it might be difficult to hold elections in a timely manner.
Supporters of temporary appointments believe they would ensure that House
membership would not be severely depleted in the weeks or even months that might
be needed to schedule special elections. From their perspective, the appointments
could also demonstrate the country’s determination to continue a representative form
of government, even in extraordinary times.
Finally, they argue that restricting the use of appointment authority and requiring
a large number of vacancies to occur before the measures could be invoked would
help to safeguard against using the measures in situations other than extreme
emergencies.
Arguments in Opposition. Opponents argue that allowing governors to
appoint Representatives temporarily would depart from the basic tenet of a House
kept close to the people, where each Member has taken his seat only as a result of
direct election by the voters in the Member’s district. They maintain that such
appointments might contribute to unrest or fear among the nation’s citizens by
casting doubt upon the government’s ability to respond to crises. In addition, they
point out that if such a process were ever to be invoked, two classes of
Representatives would be created: those who became Members through the crucible
of the electoral process, and those who were appointed.
Opponents also assert that temporary appointments could result in a change in
the party control of Congress, if governors’ appointees were of a party different from
their predecessors’.7 This shift could result in a change in the legislative agenda, and
the actions of the short-term appointees could have long-term effects. In addition,
they contend that procedural concerns about constituting a quorum in order to
conduct legislative business could be resolved by modifying House rules, rather than
by amending the Constitution.8
7 As introduced, H.J.Res. 67 did not require that appointees be of the same political party
as their predecessors. State election laws providing for temporary Senate appointments
indicate that four states — Alaska, Arizona, Hawaii, and Utah — require the governor to
appoint someone of the same political party as the predecessor. Although it could be argued
that such provisions constitute additional qualifications, they have not been challenged.
8 House and Senate procedures now set a quorum at one-half plus one of the chamber’s
Members who are sworn and living. Both the House and the Senate could continue
(continued...)

CRS-4
Proposed constitutional amendments such as those introduced during the 107th
Congress also raise concerns about their conformity or conflict with current state
election laws and affected parts of state constitutions. There could be additional
problems in reaching agreement on what would constitute a Member’s being declared
“incapacitated” and who would make that determination. Finally, H.J.Res. 67 made
no provision for Representatives who recovered from temporary incapacity to regain
their seats without competing for them in special elections.
Revisited Issue
The constitutional amendments proposed during the 107th Congress, were not
the first of their kind. For example, from the 1940s through 1962, the issue of filling
House vacancies in the event of a national emergency generated considerable interest
among some Members of Congress. The “cold war,” the Soviet Union’s successful
testing of the atomic bomb in September 1949, and subsequent claims that it might
be stockpiling atomic weapons heightened the interest of some Members. More than
30 proposed constitutional amendments, which provided for temporarily filling
House vacancies or selecting successors in case of the disability of a significant
number of Representatives, were introduced from the 79th Congress (1945-1947)
through the 87th Congress (1961-1963).9 During that period, hearings were held in
8 (...continued)
functioning with a smaller number of surviving Members constituting a quorum, but
incapacitated Members unable to attend could prevent a quorum from being established.
Opponents of temporary appointments have argued that incapacitation questions could be
handled by House or Senate rules without a constitutional amendment.
9 The proposals are as follows: 79th Congress (1945-1947) — H.J.Res. 362; 80th Congress
(1947-1949) — H.J.Res. 34, S.J.Res. 161; 81st Congress (1949-1951) — H.J.Res. 48; 82nd
Congress (1951-1953) — H.J.Res. 155, H.J.Res. 166, S.J.Res. 59, S.J.Res. 75; 83rd Congress
(1953-1955) — H.J.Res. 135, H.J.Res. 159, H.J.Res. 244, H.J.Res. 507, S.J.Res. 39, S.J.Res.
150; 84th Congress (1955-1957) — H.J.Res. 50, H.J.Res. 295, H.J.Res. 322, H.J.Res. 325,
H.J.Res. 475, S.J.Res. 8; 85th Congress (1957-1959) — H.J.Res. 52, H.J.Res. 105, S.J.Res.
157; 86th Congress (1959-1961) — H.J.Res. 30, H.J.Res. 519, S.J.Res. 85; 87th Congress
(1961-1963) — H.J.Res. 29, H.J.Res. 74, H.J.Res. 91, H.J.Res. 508, H.J.Res. 893, and
S.J.Res. 123.

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the House10 and Senate.11 On three occasions the Senate Committee on the Judiciary
reported a proposal,12 and three proposals were passed on the Senate floor.
Floor Votes. From 1954 through 1960, the Senate passed by large margins
three proposed constitutional amendments that provided for temporarily filling House
vacancies due to a national emergency. The first proposal, S.J.Res. 39, was amended
and passed by a vote of 70-1 on June 4, 1954.13 It authorized governors to make
temporary appointments to the House after notification of vacancies and “whenever
by reason of the occurrence of acts of violence during any national emergency or
national disaster, the total number of vacancies in the House of Representatives shall
exceed one hundred and forty-five....” The House took no action on the measure.
The second proposal, S.J.Res. 8, was passed by a vote of 76-3 on May 19,
1955.14 It provided that:
on any date that the total number of vacancies in the House of Representatives
exceeds half of the authorized membership thereof, and for a period of sixty days
thereafter, the executive authority of each State shall have power to make
temporary appointments to fill any vacancies, including those happening during
such period, in the representation from his state in the House of Representatives.
S.J.Res. 8 was referred to the House Judiciary Committee; no further action was
taken.
10 U.S. Congress, House Committee on the Judiciary, Subcommittee No. 2, Constitutional
Amendments for Continuity of Representative Government During Emergency
, hearings on
H.J.Res. 29, H.J.Res. 74, H.J.Res. 91, and H.J.Res. 508, 87th Cong., 1st sess., Aug. 23, 1961
(Washington, GPO, 1961).
11
See (1) U.S. Congress, Senate Committee on the Judiciary, Subcommittee on
Constitutional Amendment, Constitutional Amendments, hearings on S.J.Res. 33, S.J.Res.
59, S.J.Res. 75, S.J.Res. 117, S.J.Res. 125, S.J.Res. 127, and S.J.Res. 145, 82nd Cong., 2nd
sess., March 20, 26, June 27, 1952 (Washington: GPO, 1952); and (2) U.S. Congress, Senate
Committee on Judiciary, Subcommittee on Constitutional Amendment, Appointment of
Representatives
, hearings on S.J.Res. 8, 84th Cong., 1st sess., March 15, 1955 (Washington,
GPO, 1955).
12
See (1) U.S. Congress, Senate Committee on the Judiciary, Appointment of
Representatives in Time of National Emergency, report to accompany S.J.Res. 39, 83rd
Cong., 2nd sess., S.Rept. 83-1459 (Washington: GPO, 1954); (2) U.S. Congress, Senate
Committee on the Judiciary, Appointment of Representatives, report to accompany S.J.Res.
8, 84th Cong., 1st sess., S.Rept. 84-229 (Washington: GPO, 1955); and (3) U.S. Congress,
Senate Committee on the Judiciary, Appointment of Representatives, report to accompany
S.J.Res. 123, 87th Cong., 2nd sess., S.Rept. 87-1449 (Washington: GPO, 1962).
13 “Proposed Amendment to the Constitution to Enable Congress to Function Effectively in
Time of Emergency or Disaster,” Debate and Vote in the Senate on S.J.Res. 39,
Congressional Record, vol. 100, June 4, 1954, pp. 7658-7669.
14 “Filling of Temporary Vacancies in the Congress Caused by Disaster,” Debate and Vote
in the Senate on S.J.Res. 8, Congressional Record, vol. 101, May 19, 1955, pp. 6625-6629.

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The Senate passed the third proposed constitutional amendment, S.J.Res. 39,
on February 2, 1960, by a vote of 70-18.15 It authorized governors to fill vacancies
in the House “on any date that the total number of vacancies ... exceeds half of the
authorized membership.” The governor’s appointive authority would have been
limited to 60 days, and the appointee would have served until a successor was elected
in a special election. The bill was amended on the Senate floor to include two
additional provisions: one pertained to granting the District of Columbia electoral
votes in national elections and non-voting delegate(s) to the House; the other
eliminated the poll tax or other property qualification as a prerequisite for voting in
federal elections. The three-amendment package was sent to the House, where the
anti-poll tax and House emergency appointment provisions were deleted and the
District of Columbia suffrage provision was modified (H.J.Res. 757). The House
substituted the language of H.J.Res. 757 into the Senate measure and passed it by
voice vote on June 14, 1960. The Senate adopted (by voice vote) the House version
of S.J.Res. 39 without further amendment. S.J.Res. 39, granting three electoral votes
for the District of Columbia in presidential elections, was ratified by the states on
March 29, 1961.
Policy Options
Many of the proposals introduced between 1945 and 1962 were aimed at
addressing two or more of the following issues: the conditions under which the
vacancies would be filled, the number or percentage of vacancies needed to invoke
implementation of the measure, and the duration of the temporary appointments. For
example, some of the earlier proposals would have directed state legislatures “to
meet and select from their number a person or persons to take the place of such
Representative or Representatives.” The measures also stipulated that this procedure
would go into effect only if a majority of the House were unable to perform their
duties.
A number of the earlier proposals required a notification procedure in which
the President, the Speaker of the House, or some other specified official would be
required first to declare that a national emergency or disaster existed and that a
majority of the seats in the House were vacant. Governors would then make
temporary appointments until elections could be held. The notification process,
however, raised a number of definitional and procedural questions, e.g., what is a
national disaster and who would determine when it occurs? Consequently, some
sponsors deleted the notification provisions and terms deemed problematic (e.g.,
defining a national disaster) from the text of their proposals. They introduced
measures that authorized governors to make temporary appointments to the House
“on any date that the total number of vacancies in the House exceeded half of the
authorized membership.” The supposition made was that the sudden occurrence of
an inordinate number of House vacancies would result only from a national
emergency or disaster.
15 “Filling of Temporary Vacancies in the House of Representatives,” Congressional
Record
, vol. 106, Jan. 26, 1960-Feb. 2, 1960, pp. 1320,1380,1515,1528,1598,1619,
1715,1744,1749, 1765.

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Under most of the measures, the term of the appointees would have been limited
to 60 to 90 days, by which time an election was to have been held. In some of the
earlier proposals (where the individual would have been selected by the legislature),
however, the person selected would have served for the remainder of the term of the
Representative he succeeded. The number or percentage of vacancies required to
invoke the emergency measure typically was one-half, one-third, or one-fourth of the
House membership.
Many of the current issues raised and arguments offered in support of or in
opposition to the temporary appointment of Representatives are the same as those
made approximately 50 years ago. The events of September 11, 2001, have altered
the equation, however. There is concern that the advent of suicidal terrorists who are
independent of national governments and, thus, are not deterred from using weapons
of mass destruction because of the possible consequences for their own people, may
make the use of these weapons more likely in the future.
Alternatives to Amending the Constitution
Congress might propose a constitutional amendment such as H.J.Res. 67,
H.J.Res. 77, or S.J.Res. 30, which were introduced during the 107th Congress. The
resolutions would have provided for temporary appointments to the House under
extraordinary circumstances. It also has been noted however, that apart from a
constitutional amendment, state governments could act relatively quickly, using their
emergency powers to hold special elections in the event of a catastrophe in Congress.
Alternatively, Congress could pass legislation requiring states to hold special
elections to fill House vacancies within a specified, shorter interval under emergency
conditions.16 Representative Sensenbrenner introduced such a bill, H.R. 2844, on
July 24, 2003. It would require states to hold special elections not later than 21 days
after the vacancies are announced by the Speaker of the House in extraordinary
circumstances. The bill has been referred to the House Committee on House
Administration. In addition, as noted above, the House could provide for conducting
business with a reduced membership through rule changes.
16 For further detail on these and other types of proposals for filling House vacancies in the
event of a national emergency, see CRS Report RL31394, House Vacancies: Proposals for
Filling Them After a Catastropic Loss of Members
, by Sula P. Richardson.