Order Code RL32031
CRS Report for Congress
Received through the CRS Web
House Vacancies:
Proposed Constitutional Amendments for
Filling Them Due to National Emergencies
Updated April 16, 2004
R. Eric Petersen
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. Another recently created outside group
— the Coalition to Preserve an Elected Congress — opposes the Continuity of
Government Commission’s proposal and any proposed constitutional amendment
that would do away with the people’s constitutional right to
elect their
Representatives.
During the 107th and 108th Congresses, proposed constitutional amendments
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. The measure has been reported
by both the House Administration Committee and the House Committee on the
Judiciary.
This report discusses proposals introduced in the 107th and 108th Congresses and
will not be updated further. 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
Constitutional Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Legislative Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Related Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
107th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Pro/Con Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Arguments in Favor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Arguments in Opposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Revisited Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Floor Votes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Policy Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Alternatives to Amending the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . 11
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.1 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.2 The laws of most states authorize
governors to make temporary appointments to the U.S. Senate,3 but not to the U.S.
House of Representatives.
108th Congress
In June of 2003, a privately funded group, the Continuity of Government
Commission,4 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.5
1 This report was written by Paul S. Rundquist, and Sula Pat Richardson, who have retired
from the Congressional Research Service. The listed author updated the report and is
available to answer questions concerning its contents.
2 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.
3 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.
4 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 March 15,
2004.
5 Continuity of Government Commission, “Summary of Central Recommendation,” in
(continued...)
CRS-2
Also in June 2003, another outside group — the Coalition to Preserve an
Elected Congress — was created. The coalition opposes the Continuity of
Government Commission’s proposal and any such constitutional amendments that
would permit the appointment (rather than election) of Members of Congress.6
Both houses of Congress have taken some steps in the 108th Congress to help
ensure continued operations in the event of a catastrophe. In the House,
Representatives Christopher Cox and Martin Frost, among others, submitted
suggestions for changes in House Rules to minimize the threat to Congress’s
continuity posed by emergencies. Some of these suggestions were incorporated into
H.Res. 5, agreed to January 7, 2003, adopting the Rules of the House for the 108th
Congress.
New rule language directs the Speaker to designate in writing a number of
Members who would serve (in the order listed) as Speaker pro tempore in the event
of the Speaker’s death or disability, until a successor Speaker or Speaker pro tempore
could be elected by the House. The new rule does not specify a minimum or
maximum number of Members to be so designated. Other rules changes authorize
the Speaker to recess the House at any time if he or she is informed of an imminent
threat to Members’ safety, and codifies in the rules the established House practice
that a quorum is a majority of the members elected, sworn, and living.
In addition, both houses agreed to H.Con.Res. 1, which would allow designees
of the Speaker and the Senate majority leader to call Congress into session in the
event of the death or disability of either leader.
At the President’s State of the Union Address, one cabinet member traditionally
does not attend in order to safeguard the line of presidential succession. For what
appears to be the first time, several Members of Congress did not attend the January
28, 2003 address to safeguard the continuity of Congress: Senator Ted Stevens, the
President pro tempore, Senators Evan Bayh and Peter Fitzgerald, and Representative
Roy Blunt, the House majority whip.
A number of legislative proposals as well as proposed constitutional
amendments have been introduced in the 108th Congress directed at congressional
continuity issues.
Constitutional Amendments. H.J.Res. 77 and H.J.Res. 83, both sponsored
by Representative Brian Baird, were referred to the House Committee on the
5 (...continued)
Preserving Our Institutions, First Report of the Continuity of Government Commission,
May 2003 (Washington: American Enterprise Institute, 2003), p. 58.
6 The Coalition to Preserve an Elected Congress was formed to coordinate opposition to the
Commission’s report. Among its activities, the coalition is asking individuals and
organizations to endorse a resolution opposing any constitutional amendment that “takes
away from the American people their constitutionally protected right to elect their own
Representatives to the U.S. House of Representatives.” See [http://www.electcongress.org/
cgi_bin/ resolution/Resolution.html], visited Apr. 15, 2004.
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Judiciary. They provide that, prior to taking the oath of office, a Representative-elect
is to present to the chief executive of his or her state, a list of not less than two
nominees (qualified to serve in the House under the Constitution) to take the
individual’s place in the event that the Member died or became incapacitated prior
to the expiration of the term just commencing. Thereafter, if a majority of the whole
membership of the House becomes unable to carry out their duties owning to death
or incapacity, or if the House adopts a resolution declaring that extraordinary
circumstances exist which “threaten the ability of the House to represent the interests
of the people,” state chief executives would appoint replacement Members within
seven days after the deaths or disabilities have been certified. A new Member
appointed under this procedure would serve until an incapacitated Member is again
able to serve, or until a special election can be held in the state to fill the seat.
Although the first three sections of the proposed amendment deal with filling
the seats of House Members only, section four of the amendment grants expanded
legislative authority to both chambers. Under that section, the House and Senate
would, by law, be able to establish the criteria for determining whether a Member of
either chamber was dead or incapacitated.
S.J.Res. 23, introduced by Senator John Cornyn on November 5, 2003, proposes
to give Congress authority — in the event 25 % of either chamber were killed or
disabled — to enact legislation governing procedures for determining the inability
of a Senator or Representative, or to determine the deaths of Members of the House.
The Senate was excluded from this latter provision because, in the event of the deaths
of Senators, the Constitution already provides for the appointment of replacements,
or the calling of a special election, as each state determines. The constitutional
amendment sets a 120-day period during which such emergency procedures would
be in effect, with the possibility that the emergency period could be extended for an
additional 120-days if 25 % of the seats in either chamber remained vacant or were
filled by incapacitated Members.
On March 11, 2004, Representative John Larson introduced a proposed
constitutional amendment, H.J.Res. 89, which addressed both the issue of temporary
appointments to fill extraordinary vacancies and the issue of Member disability.
Minority views submitted to H.Rept. 108-404, part 1, to accompany H.R. 2844,
discussed below, indicated that Representative Larson would shortly introduce such
a proposal. The proposed Larson constitutional amendment would allow less than
a majority of the House of Representatives to declare that a vacancy existed in a
majority of the seats in the House. Pursuant to such declaration, replacement
Members could be appointed by: (1) the legislatures of the affected States,
summoned into special session if necessary or, (2) the state governor, if the state
legislature failed to appoint replacement Members within three days of the start of
their special sessions. An individuals appointed under these provisions must: (1)
meet the constitutional requirements for service in the House; (2) be from the same
political party as the Member whose seat was vacant; and (3) would be ineligible to
be a candidate in the immediately following special election. The appointment
process would apply to vacancies existing on the date the House first declared that
a majority of seats were vacant and to those seats that might become vacant during
the 20 days following such declaration. Appointed Members would serve until
special elections are held. Additionally, Congress would be authorized to enact
CRS-4
legislation to “specify circumstances constituting when a vacancy happens in the
Representation from any State in the House of Representatives, and to address the
incapacity of Members of the House of Representatives.”
Also on March 11, 2004, Representative Zoe Lofgren introduced H.J.Res. 90,
a proposed constitutional amendment that revises her proposal from the 107th
Congress. If more than 30 % of House seats were vacant at any time due to death or
resignation, a temporary appointment process which Congress would be authorized
to enact would be triggered. Replacement members appointed pursuant to this law
would serve until special elections (conducted under the laws of each particular
State) to fill a vacancy were held, or until the appointed Members had served for a
period of six months from the date their temporary service began.
Representative Dana Rohrabacher introduced another proposed constitutional
amendment on April 2, 2004. It would permit each candidate for the House or Senate
to pre-designate, in ranked order, three to five potential temporary successors. The
appointments must be publicly available no earlier than one year and no later than 60
days prior to the general election. As a result, voters could know the identity of
potential successors chosen by the Member prior to the election, and those choices
could be part of voters’ decision to support or oppose a candidate. The proposal —
H.J.Res. 92 — would repeal the current authority of governors to make temporary
appointments to fill Senate vacancies, except that governors would be allowed to
temporarily appoint Representatives and Senators if the elected Senator or
Representative had not submitted a list of successors, or if none of the listed
successors was able to serve.
Legislative Proposals. The most extensive action in the House has
occurred on H.R. 2844, a bill introduced by Representative James Sensenbrenner on
July 24, 2003, and referred to the Committee on House Administration and,
sequentially, to the Committee on the Judiciary. The bill proposes to set a timetable
for expedited special elections in the event of a catastrophic loss of membership in
the House of Representatives. The House Administration Committee held hearings
on the bill on September 24, 2003, receiving testimony from five Members of
Congress, various state election officials, and expert witnesses from the Woodrow
Wilson International Center for Scholars, the Brookings Institution, and the
American Enterprise Institute.
At the House Administration Committee markup on November 19, 2003, the
committee agreed to an amendment in the nature of a substitute offered by
Representative Rob Ney, the committee chairman. Most significantly, the Ney
amendment lengthened the timetable for holding special elections from the 21-day
schedule set in the bill as introduced to 45 days. The measure was reported by a 4-3
vote. The report of the committee (H.Rept. 108-404, part 1) was issued on December
8, 2003. The Committee on the Judiciary held no separate hearings on the measure,
relying on testimony it received on proposed constitutional amendments in the 107th
Congress and testimony taken by the Cox-Frost task force. The Committee reported
the measure on January 21, 2004, and the report (H.Rept. 108-404, part 2) was filed
on January 28, 2004.
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A bill, S. 1820, introduced by Senator John Cornyn on November 5, 2003,
would authorize the states to take emergency action to fill vacant seats of Members
or replace incapacitated Members if 25 % of the House or Senate were dead or
incapacitated. The emergency procedures would be triggered through two
mechanisms. The Speaker and the House Minority Leader, or their designees, could
jointly declare that one-fourth of the House Members had been killed or
incapacitated. Alternatively, state governors could individually certify that one or
more of the state’s congressional delegation had been killed or incapacitated and the
President of the United States had declared that he had received a sufficient number
of certifications from State governors to determine that one-fourth of the Senators or
Representatives had been killed or incapacitated.
The Cornyn bill authorizes the states to enact legislation providing for filling
House vacancies by special election or by appointment by the governor or state
legislature, by appointment from a list of potential successors submitted by the
incumbent Member, or by such other procedures as the state legislature determines
to be appropriate. Under each of the latter three options, a subsequent special
election would be required. With regard to Senate vacancies, the bill provides for
appointment by the governor or legislature of the state, appointment from a list of
successors submitted by the incumbent Senator, or such other procedures as the state
determines. The Cornyn bill does not appear to contemplate the holding of special
elections to fill a Senate vacancy, although Oregon, Wisconsin and, in some
circumstances, Oklahoma require special elections to fill vacancies.
Another Cornyn measure, S. 2031, introduced January 27, 2004, addresses only
the issue of senatorial incapacity. Under procedures set in the bill, if the Senate finds
itself without a quorum, the majority and minority leaders (or their designees) may
jointly announce their finding that the absence of a quorum was caused by the
inability of Senators to discharge the powers and duties of the office. In that event,
procedures which the bill authorizes states to enact into law would be triggered
permitting the replacement of Senators unable to serve.
Related Proposals. Not directly related to the issue of congressional
continuity is H.R. 415, introduced by Representative Alcee Hastings on January 28,
2003. The bill calls for a congressional-executive commission to study and
recommend possible changes in the size of the House of Representatives and the
method by which Members are elected. Although the bill makes no reference to the
issues of special elections, appointments, and Member incapacity, the commission
might study these questions if it were set up.
On July 25, 2003, Representative James Langevin introduced H.R. 2948, a
revised version of his electronic Congress proposal of the 107th Congress. The
current bill would direct the Comptroller General to enter into arrangements with the
National Academy of Sciences and the Librarian of Congress to study and evaluate
a study on the feasibility and costs of implementing an emergency electronic
communications system for Congress to ensure the continuity of the operations of
Congress during an emergency, and for other purposes.
CRS-6
107th Congress
During the 107th Congress, Representative Brian 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, 2002.7 No further action on the measure was taken. The resolution had
86 cosponsors.
On December 20, 2001, Senator Arlen 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.8
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 Zoe 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
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
7 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.
8 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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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’.9 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.10
9 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.
10 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
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.
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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
Constitutional amendments dealing with catastrophic losses of congressional
membership proposed during the 107th and 108thCongresses, 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).11 During that period, hearings were held in
the House12 and Senate.13 On three occasions the Senate Committee on the Judiciary
reported a proposal,14 and three proposals were passed on the Senate floor.
11 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.
12 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).
13 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).
14 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,
(continued...)
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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, 1954.15 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,
1955.16 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.
The Senate passed the third proposed constitutional amendment, S.J.Res. 39,
on February 2, 1960, by a vote of 70-18.17 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
14 (...continued)
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).
15 “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.
16 “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.
17 “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.
CRS-10
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.
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.
CRS-11
Alternatives to Amending the Constitution
Congress might propose a constitutional amendment which would provide 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.18
18 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 R. Eric Petersen.