House Vacancies: Proposed Constitutional Amendments for Filling Them Due to National Emergencies

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 th 107 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. CRS-3 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. CRS-5 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. CRS-7 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. CRS-8 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...) CRS-9 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.