Continuity of Congress: Enacted and Proposed Federal Statutes for Expedited Election to the House in Extraordinary Circumstances

Continuity of Congress: Enacted and Proposed Federal Statutes for Expedited Election to the House in Extraordinary Circumstances

Order Code RL32958
CRS Report for Congress
Received through the CRS Web
Continuity of Congress: Enacted and Proposed
Federal Statutes for Expedited Election to the
House in Extraordinary Circumstances
Updated August 9, 2005
R. Eric Petersen and Sula P. Richardson
Analysts in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress

Continuity of Congress: Enacted and Proposed Federal
Statutes for Expedited Election to the House in
Extraordinary Circumstances
Summary
On August 2, 2005, H.R. 2985, the Legislative Branch Appropriations Act,
2006, which includes a measure (Title III) providing for expedited special House
elections in extraordinary circumstances, was signed into law (P.L. 109-55). As
adopted by both houses in late July 2005, the conference report to H.R. 2985
(H.Rept. 109-189) included the “continuity in representation” provision. On June 30,
2005, the Senate passed H.R. 2985, with amendments, by unanimous consent, and
asked for a conference with the House. During a markup held June 23 by the
Subcommittee on Legislative Branch of the Senate Committee on Appropriations,
the subcommittee, by a voice vote, recommended that the Senate strike Title III of
the measure, providing for expedited special elections to replace members of the
House of Representatives when 100 or more of the seats in the House are vacant due
to “extraordinary circumstances.”
On June 22, 2005 the House passed H.R. 2985, the Legislative Branch
Appropriations Act, 2006, by a vote of 330 — 82. An amendment (H.Amdt. 338)
offered by Representative Brian Baird to strike Title III of the bill relating to
continuity in representation failed of adoption by a vote of 143 — 268.
On June 16, 2005, during the markup of a draft measure funding FY2006
legislative branch operations, the Appropriations Committee adopted an amendment
providing for expedited special elections to replace Members when 100 or more of
the seats in the House are vacant due to “extraordinary circumstances.” The
amendment was offered by Representative Jerry Lewis, chairman of the
Appropriations Committee reportedly at the request of the Speaker. The bill, which
was introduced on June 20 as the Legislative Branch Appropriations Act, 2006,
incorporates the text of H.R. 841, the Continuity in Representation Act of 2005,
introduced by Representative James Sensenbrenner in mid-February. H.R. 841 was
passed by the House on March 3 by a vote of 329 — 68 and has been placed on the
Senate legislative calendar, but has not yet been called up for floor action.
The adoption of Title III of H.R. 2985, attaching a legislative proposal to a
measure that must pass to fund legislative branch activities, has been reported as a
signal that the majority leadership of the House place great importance on enacting
a congressional emergency preparedness measure. It has been reported that should
the Senate consider H.R. 841, the House might agree to strike Title III of H.R. 2985
during conference negotiations.
This report is one of several CRS products related to congressional continuity
and contingency planning, and will be updated. Others include CRS Report
RL32031, House Vacancies: Proposed Constitutional Amendments for Filling Them
Due to National Emergencies by Sula P. Richardson and Paul S. Rundquist; and CRS
Report RL31594, Congressional Continuity of Operations (COOP): An Overview of
Concepts and Challenges by R. Eric Petersen and Jeffrey W. Seifert.

Contents
Recent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Title III, P.L. 109-55 as Enacted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
H.R. 841 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Issue Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Legislative Proposals, 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
H.R. 2844 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
S. 1820 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Further Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Continuity and Emergency Preparedness of Congress . . . . . . . . . . . . . . . . . . 9
Continuity and Preparedness in the Federal Government . . . . . . . . . . . . . . . 9

Continuity of Congress: Enacted and
Proposed Federal Statutes for Expedited
Election to the House in Extraordinary
Circumstances
Recent Action
On August 2, 2005, the President signed the Legislative Branch Appropriations
Act, 2006 (P.L. 109-55), which includes a provision (Title III) for expedited special
House elections in extraordinary circumstances. As adopted by the House (305-122)
on July 28, 2005, and the Senate (96-4) on July 29, 2005, the conference report to
H.R. 2985 (H.Rept. 109-189) included the “continuity in representation” provision.
On June 30, 2005, the Senate passed H.R. 2985 with amendments, by
unanimous consent. At the same time, the Senate asked for a conference and
appointed conferees. (Unlike the House-passed version of H.R. 2985, the Senate-
passed version of H.R. 2985 did not include the “continuity in representation”
provision.) During a markup held June 23 by the Subcommittee on Legislative
Branch of the Senate Committee on Appropriations, the subcommittee, by a voice
vote, recommended that the Senate strike Title III of the measure, providing for
expedited special elections to replace members of the House of Representatives when
100 or more of the seats in the House are vacant due to “extraordinary
circumstances.”1 Consideration of the language relating to special elections was
reportedly included in the proposal submitted to the subcommittee by Senator Allard
at the request of House leaders.2
On June 22, 2005 the House of Representatives passed H.R. 2985, the
Legislative Branch Appropriations Act, 2006, by a vote of 330 — 82. In the course
of the debate, Representative Brian Baird offered H.Amdt. 338, to strike Title III of
the bill relating to continuity in representation. The amendment failed of adoption
by a vote of 143 — 268.
1 U.S. Congress, Senate, Legislative Branch Appropriations, 2006, report to accompany H.R.
2985, 109th Congress, 1st sess., S.Rept. 109-89 (Washington: GPO, 2005), available at
[http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_reports&docid=f
:sr089.109.pdf].
2 Daphne Retter, “Legislative Branch Appropriations: Spending Bill for Congressional
Operations Heads to Conference committee,” CQ Today, July 1, 2005; and Daphne Retter,
“Legislative Branch Appropriations: Senate Panel Strikes Congressional Continuity
Language Sought by House,” CQ Today, June 23, 2005. Articles retrieved from the cq.com
website.

CRS-2
On June 16, 2005, Representative Jerry Lewis, Chairman of the House
Committee on Appropriations, offered an amendment to a draft measure funding
legislative branch operations for FY2006. Chairman Lewis’s amendment was
reportedly offered at the request of the Speaker.3 The amendment was adopted by the
committee as Title III of the funding bill by a voice vote, as was the full measure
funding legislative branch activities.4 The appropriations bill was introduced on June
20 as H.R. 2985. Title III of H.R. 2985 is the same text as H.R. 841, the Continuity
in Representation Act of 2005, introduced by Representative James Sensenbrenner,
which the House passed by a vote of 329 — 68 on March 3, 2005. On March 19,
H.R. 841 was read in the Senate the second time, and placed on Senate legislative
calendar.
The House has passed similar legislation authorizing special elections in
extraordinary circumstance in the 108th and 109th Congresses. The adoption of Title
III of H.R. 2985, attaching a legislative proposal to a measure that must pass to fund
legislative branch activities, was reported as a signal that the majority leadership of
the House placed great importance on enacting a congressional emergency
preparedness measure. It was further reported that had the Senate agreed to consider
H.R. 841, the House might have agreed to the elimination of Title III during
conference negotiations on H.R. 2985.5
Title III, P.L. 109-55 as Enacted
Title III of P.L. 109-55, making appropriations for the legislative branch for the
fiscal year ending September 30, 2006, requires that states6 in which a vacancy exists
in its representation in the House of Representatives:
! hold a special election within 49 days7 following an announcement
by the Speaker of the House that because of extraordinary
circumstances, vacancies in representation from the states have
exceeded 100 seats. The 49-day requirement would be waived if,
during the 75-day period beginning on the date of the vacancy
3 Jennifer Yachnin, “House OKs $2.9 Billion Legislative Branch Bill,” Roll Call, June 23,
2005, at [http://www.rollcall.com/pub/50_136/news/9794-1.html]; and Suzanne Nelson,
“GOP Prods Senate on Continuity, Roll Call, June 20, 2005 at
[http://www.rollcall.com/issues/50_133/news/9716-1.html]; website visited July 14, 2005.
4 House Rule XXI (2)(b) prohibits provisions changing existing law from being reported in
general appropriations bills. H.Res. 334, adopted by the House on June 22, 2005, provided
for a waiver of this prohibition during consideration of H.R. 2985.
5 Jonathan Allen, “Legislative Branch Appropriations: House Uses Must-Pass Bill as
Insurance for Congressional Continuity,” CQ Today, June 16, 2005, retrieved from the
cq.com website; and Suzanne Nelson, “GOP Prods Senate on Continuity, Roll Call, June 20,
2005 at [http://www.rollcall.com/issues/50_133/news/9716-1.html], visited June 23, 2005.
6 The measure would also apply to election officials in the District of Columbia, the
Commonwealth of Puerto Rico, American Samoa, Guam, and the U.S. Virgin Islands.
7 As introduced, H.R. 841 called for special elections within 45 days. This was changed to
49 days by amendment on the floor.

CRS-3
announcement, a regularly scheduled general election or another
special election for the office involved is scheduled to be held;
! make a determination of the candidates who will run in the special
election (1) not later than 10 days after the vacancy announcement
by the political parties authorized by state law to nominate
candidates; or (2) by any other method the state considers
appropriate;
! ensure to the greatest extent practicable that absentee ballots for the
election are transmitted to absent uniformed services voters and
overseas voters not later than 15 days after the Speaker of the House
announces that the vacancy exists; and
! accept and process any otherwise valid ballot or other election
material from an absent uniformed services voter or an overseas
voter, as long as the ballot or other material is received by the
appropriate state election official not later than 45 days after the state
transmits the ballot to the voter.
In addition, Title III of P.L. 109-55 sets forth requirements for judicial review
of any action brought for declaratory or injunctive relief to challenge a vacancy
announcement, and require the judiciary to provide a final decision within three days
of the filing of such an action. The law makes a final decision non-reviewable.8
H.R. 841
On February 16, 2005, Representative James Sensenbrenner introduced H.R.
841. The bill would require expedited special elections to be held within 45 days of
an announcement by the Speaker of the House that there are more than 100 vacancies
in the House.
The House Administration Committee held a markup on H.R. 841 on February
17, 2005. The committee agreed to an amendment in the nature of a substitute offered
by Representative Robert Ney, the committee chairman. Among other things, the Ney
amendment added a provision giving states authority to set up their own candidate
nominating processes, so long as the vacancies are filled within the prescribed time.
It also added a section on the “Application to District of Columbia and Territories”
(namely, that the measure applies to the District of Columbia and territories, but that
vacancies in those jurisdictions shall not be taken into account by the Speaker in
determining whether vacancies from the states in the House exceed 100). The
8 See U.S. Congress, House, Continuity in Representation Act of 2005, Report to accompany
H.R. 841, 109th Congress, 1st sess., H.Rept. 109-8, Part I (Washington: GPO, 2005), at
[http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_reports&docid=f
:hr008p1.109.pdf] and U.S. Congress, House, Report to accompany H.R. 2985, 109th
Congress, 1st sess., H.Rept. 109-139 (Washington: GPO, 2005), at
[http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_reports&docid=f
:hr139.109.pdf].

CRS-4
committee rejected an amendment by Representative Juanita Millender-McDonald,
the ranking minority member. It would have lengthened the timetable for holding the
expedited elections to 60 days (rather than 45 days). The House Administration
Committee reported H.R. 841 favorably, as amended, on February 24, 2005.9
On March 1, 2005, the House Rules Committee ordered by voice vote a special
rule providing for the consideration of H.R. 841. The structured rule provided for the
consideration of two amendments: an amendment by Representative
Millender-McDonald expanding from 45 to 60 days the period within which special
elections must be held (amendment previously offered in House Administration
Committee and defeated) and an amendment by Representative Jackson-Lee
broadening the grounds upon which a legal challenge may be made against the
expedited processes outlined in the bill. When the special rule providing for
consideration of H.R. 841 was brought up for floor action, Representative Tom Cole,
the majority floor manager, moved to amend the rule to permit the offering of a
“manager’s amendment” that would extend the 45-day timetable to 49 days, or seven
full weeks. The Cole amendment was agreed to by voice vote, and the special rule
was also later agreed to by voice vote.
During consideration of H.R. 841, Representative Ney offered the specified
manager’s amendment which was agreed to by voice vote. The Millender-McDonald
amendment to extend the 49-day to 60 days was defeated by a recorded vote of
192-229. The Jackson-Lee amendment to broaden the grounds on which legal
challenges to the expedited elections could be made was similarly defeated by a vote
of 183-239.
Representative Baird of Washington offered a motion to strike the enacting
clause of the bill, a parliamentary motion which, if successful, would have defeated
the measure by eliminating the language that gave the bill its legal authority.
Representative Baird and Representative Rohrabacher spoke briefly about their view
that the bill did not go far enough to ensure the continuity of House operations. They
endorsed proposals to amend the Constitution to permit the temporary appointment
of acting Representatives to fill House vacancies immediately, rather than waiting
possibly for nearly two months until the full House membership could be
reconstituted. Representative Baird, after speaking in favor of changes in the
Constitution, withdrew his motion before it could come to a vote.
Representative Conyers, the ranking minority member on the Judiciary
Committee, offered a motion to recommit which directed the addition of language
to the bill requiring states to establish equitable means for the allocation of voting
machines to all precincts. The Conyers amendment sought to prevent long lines and
voting delays in precincts to which an inadequate number of voting machines had
been assigned. The Conyers motion was defeated by a vote of 196-223. The bill
passed by a vote of 329-68 after the House vitiated by unanimous consent the voice
9 See U.S. Congress, House, Continuity in Representation Act of 2005, Report to accompany
H.R. 841, 109th Congress, 1st sess., H.Rept. 109-8, Part I (Washington: GPO, 2005), at
[http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_reports&docid=f
:hr008p1.109.pdf], visited June 23, 2005.

CRS-5
vote passage of the bill. The House took that action after it was brought to the
Speaker pro tempore’s attention that Representative Miller-McDonald had been
seeking recognition to demand a yea-and-nay vote but had not been recognized to
offer that motion.10
In the Senate, H.R. 841 was not referred to committee but was placed on the
Senate Legislative Calendar on March 19, 2005.
Issue Background
The terrorist attacks of September 11, 2001, biological agent incidents affecting
Congress in 2001, 2002, and 2003, and legislative branch-wide evacuations due to
incursions of unidentified aircraft near the Capitol in 2004 and 2005 have prompted
increased concerns about the activity of government in an emergency. This
uncertainty has prompted some Members of Congress, scholars, and other political
observers to consider options for congressional succession, or for temporarily filling
multiple House vacancies that might occur, due to injury or death of Members in
emergency situations.11 In the 108th Congress, several contingency measures were
introduced that would have: (1) amended the Constitution by allowing for the
temporary appointment of individuals pre-designated by Members; (2) allowed state
legislatures or governors to make temporary appointments; (3) authorized Congress
to provide a temporary appointment process; and (4) authorized Congress to regulate
the temporary filling of vacancies by law. 12
10 The full debate on the special rule and on H.R. 841 can be found in the Congressional
Record (daily edition), vol. 151, 109th Cong., 1st sess., March 3, 2005, pp. H948-H971.
11 Filling large numbers of vacant seats in the House is one of several contingency planning
challenges facing Congress, some of which predate the September 2001 attacks. Planning
in support of legislative and administrative operations began pursuant to a joint bipartisan
leadership directive issued on September 6, 2000, directing the Capitol Police Board
(comprising the Sergeants at Arms of the House and Senate and the Architect of the Capitol)
to “develop and manage” a “comprehensive Legislative Branch emergency preparedness
plan.” To facilitate this effort, the board was to work “with the Attending Physician and the
Chief, US Capitol Police, and in coordination with the Officers of the Senate and House”
to develop “an integrated architecture which will address all hazards which could impede
the continuity of essential Legislative Branch functions.” According to the directive, this
integrated architecture is to include “at a minimum, emergency preparations, response,
mitigation and stabilization activities, and recovery operations.” Trent Lott, Senate Majority
Leader, J. Dennis Hastert, Speaker of the House, Thomas A. Daschle, Senate Minority
Leader, Richard A. Gephardt, House Minority Leader, “Directive to the United States
Capitol Police Board.” September 6, 2000. See CRS Report RL31594, Congressional
Continuity of Operations (COOP): An Overview of Concepts and Challenges, by R. Eric
Petersen and Jeffrey W. Seifert, pp. 3-9.
12 Several CRS reports address measures proposing constitutional amendment and the issues
underlying vacancy contingency proposals. For detailed analyses of recent proposals to fill
mass vacancies in the House of Representatives, see CRS Report RS22067, House
Vacancies: Proposals for Filling Them After the Death or Injury of Large Numbers of
Members, 2005-2006, by Sula P. Richardson and Paul S. Rundquist; CRS Report RL31394,
House Vacancies: Selected Proposals for Filling Them After a Catastrophic Loss of
(continued...)

CRS-6
Some observers contend that instead of amending the Constitution, Congress
could exercise its constitutional authority to preempt state law regarding the “Times,
Places, and Manner of Holding Elections”13 for the House and pass legislation that
would require states to hold expedited special elections within a specified time
frame.14 They assert that the legislation could amend current law,15 which leaves it
to state law to determine when an election must be held to fill a House vacancy.
Supporters of this approach note that current provisions for filling vacancies in the
House in non-emergency situations would remain intact, and the expedited special
elections would be triggered only in the event of a significant number of House
vacancies due to a national emergency. Further, supporters argued that passing a
federal statute is a far less cumbersome process than amending the Constitution. In
addition, advocates believe that a statute providing for expedited special elections
could minimize the length of time House membership would be severely depleted
without violating the basic tenet of elected Representatives.
On the other hand, critics of this approach argue that it could result in campaign
periods so short that citizens could not make reasoned, informed decisions about
candidates and issues. Shorter campaign periods could also be problematic for state
election officials, who, in keeping with their responsibility for administering
elections, must handle filing deadlines, filing requirements, absentee ballots, ballot
access, and other aspects of the election process. In congressional testimony, several
experts in election administration expressed concerns regarding the administrative
capacity of some states to administer special elections within the 45 days originally
proposed in H.R. 841.16 Aside from the administrative challenges, if a number of
12 (...continued)
Members, 2001-2004, by Sula P. Richardson and Paul S. Rundquist; and CRS Report
RL32031, House Vacancies: Proposed Constitutional Amendments for Filling Them Due
to National Emergencies, by Sula P. Richardson and Paul S. Rundquist. Background reports
on contingency planning include CRS Report RS21089, Continuity of Government: Current
Federal Arrangements and the Future, by Harold C. Relyea; CRS Report RL31594,
Congressional Continuity of Operations (COOP): An Overview of Concepts and
Challenges, by R. Eric Petersen and Jeffrey W. Seifert; and CRS Report RL31857,
Executive Branch Continuity of Operations: An Overview, by R. Eric Petersen.
13 U.S. Const. art. I, § 4, Clause 1.
14 Testimony and Prepared Statement of M. Miller Baker, U.S. Congress, House Committee
on the Judiciary, Subcommittee on the Constitution, Civil Rights and Property Rights,
Temporary Filling of House of Representatives Vacancies During National Emergencies,
hearings on H.J.Res. 67, 107th Cong., 2nd sess., Feb. 28, 2002 (Washington: GPO, 2002), p.
32. See also the Continuity of Government Commission’s website, “Proposals for Reform
— Don Wolfensberger’s Proposal,” at [http://www.continuityofgovernment.org/pdfs/
proposalwolfensberger.htm], visited June 23, 2005.
15 2 U.S.C. 1, §. 8.
16 Individual testimony, prepared statements and written submissions of Thad Hall, Doug
R. Lewis, Cory G. Fong, and Curtis Gans, in U.S. Congress, Senate, Committee on the
Judiciary, Ensuring the Continuity of the United States Government: The Congress, 108th
Cong., 1st Sess., Sept. 9, 2003 (Washington: GPO, 2003), pp. 22-24, 26-41, 86-100, available
a
t

CRS-7
states were attacked and severely damaged, it might also be difficult to hold elections
in a timely manner. Finally, more compressed campaign periods could also put
candidates who are not as well funded or as well known at a disadvantage.
Legislative Proposals, 108th Congress
H.R. 2844. In the 108th Congress, the most extensive congressional
consideration of statutory approaches to mass vacancy issues centered on H.R. 2844,
the Continuity in Representation Act of 2003, introduced by Representative James
Sensenbrenner on July 24, 2003. The measure was referred to the Committee on
House Administration and, sequentially, to the House Committee on the Judiciary.
The bill would have 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. In a
written statement, a witness representing a group of state election administrators
observed that most election officials believed that 45 days was the minimum period
in which special elections could be held, and that “it seems to us that every day you
can give us beyond 45 helps us have a more valid election that the public will buy
into, live with, understand and have some appreciation for.”17
Subsequently, at the House Administration Committee markup of H.R. 2844 on
November 19, 2003, the committee agreed to an amendment in the nature of a
substitute offered by Representative Robert Ney, the committee chairman. Most
significantly, the Ney amendment lengthened the timetable for holding special
elections from a 21-day schedule, set in the bill as introduced, to 45 days.18 The
measure was reported by a 4-3 vote. The report of the committee was issued on
December 8, 2003.19 The Committee on the Judiciary held no separate hearings on
the measure, relying on testimony it received on proposed constitutional amendments
16 (...continued)
[http://a257.g.akamaitech.net/7/257/2422/28dec20041100/www.access.gpo.gov/congress
/senate/pdf/108hrg/96926.pdf].
17 Statement of Doug Lewis, Executive Director, Election Center, U.S. Congress, House,
Committee on House Administration, Continuity of Congress: Special Elections in
Extraordinary Circumstances, 108th Congress, 1st sess., Sept. 24, 2003 (Washington: GPO,
2
0
0
3
)
,

a
v
a
i
l
a
b
l
e

a
t
[http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_house_hearings&doci
d=f:90083.wais].
18 U.S. Congress, House, Committee on House Administration, Mark-Up of H.R. 2844, the
Continuity in Representation Act of 2003, 108th Cong., 1st sess., Nov. 19, 2003
(Washington: GPO, 2004).
19 U.S. Congress, House, Report to accompany H.R. 2844, 108th Congress, 1st sess., H.Rept.
108-404, Part I, (Washington: GPO, 2003).

CRS-8
in the 107th Congress,20 and testimony taken by the Cox-Frost task force, a bipartisan
House panel created in the spring of 2002 to study the continuity issue.21 The
Judiciary Committee reported the measure on January 21, 2004, and the report was
filed on January 28, 2004.22 On April 22, 2004, the House passed H.R. 2844, by a
vote of 306 to 97. The measure was placed on the Senate calendar. No further action
on it was taken during the 108th Congress.
S. 1820. A bill, S. 1820, introduced by Senator John Cornyn on November 5,
2003, would have authorized the states to take emergency action to fill vacant seats
of Members or replace incapacitated Members if 25% of the House or Senate were
deceased or incapacitated. The emergency procedures would have been 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 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 would have authorized 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 determined
appropriate. Under each of the latter three options, a subsequent special election
would have been required. With regard to Senate vacancies, the bill would have
provided 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 determined. The Cornyn bill did 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. The
proposal was referred to the Senate Committee on Rules and Administration.23 No
further action was taken on S. 1820.
20 For a discussion of contingency-related constitutional amendments proposed in the 107th
Congress, see CRS Report RL31394, House Vacancies: Selected Proposals for Filling Them
After a Catastrophic Loss of Members, 2001-2004, by Sula P. Richardson and Paul S.
Rundquist.
21 The group was headed by Rep. Christopher Cox, then-chair of the Republican Policy
Committee, and Rep. Martin Frost, then-chair of the Democratic Caucus.
22 U.S. Congress, House, Committee on the Judiciary Continuity of Representation Act of
2003, report to accompany H.R. 2844, 108th Congress, 2nd sess., H.Rept. 108-404, Part II,
(Washington: GPO, 2004).
23 Another measure introduced by Senator Cornyn, S. 2031 (108th Congress), introduced
January 27, 2004, would have addressed only the issue of senatorial incapacity. Under
procedures set in the bill, if the Senate found itself without a quorum, the majority and
minority leaders (or their designees) could 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 the bill authorizing states to enact into law would have
been triggered, permitting the replacement of Senators unable to serve.

CRS-9
Further Reading
Continuity and Emergency Preparedness of Congress
CRS Report RS22067. House Vacancies: Proposals for Filling Them After the Death
or Injury of Large Numbers of Members, 2005-2006, by Sula P. Richardson and
Paul S. Rundquist.
CRS Report RL32031. House Vacancies: Proposed Constitutional Amendments for
Filling Them Due to National Emergencies, by Sula P. Richardson and Paul S.
Rundquist.
CRS Report RL31394. House Vacancies: Selected Proposals for Filling Them After
a Catastrophic Loss of Members, 2001-2004, by Sula P. Richardson and Paul
S. Rundquist.
CRS Report RL31594. Congressional Continuity of Operations (COOP): An
Overview of Concepts and Challenges, by R. Eric Petersen and Jeffrey W.
Seifert.
CRS Report RS21140. Emergency Electronic Communications in Congress: Issues
and Legislative Proposals, 107th and 108th Congresses, by Jeffrey W. Seifert
and R. Eric Petersen.
CRS Report RL31103. House of Representatives Information Technology
Management Issues: An Overview of the Effects on Institutional Operations, the
Legislative Process, and Future Planning, by Jeffrey W. Seifert and R. Eric
Petersen.
CRS Report RS21089. Continuity of Government: Current Federal Arrangements
and the Future, by Harold C. Relyea.
Continuity and Preparedness in the Federal Government
CRS Report RL32752. Continuity of Operations (COOP) in the Executive Branch:
Issues in the 109th Congress, by R. Eric Petersen.
CRS Report RL31857. Executive Branch Continuity of Operations (COOP): An
Overview, by R. Eric Petersen.
CRS Report RL31978. Emergency Preparedness and Continuity of Operations
(COOP) Planning in the Federal Judiciary, by R. Eric Petersen.
CRS Report RL31761. Presidential Succession: An Overview with Analysis of
Legislation Proposed in the 108th Congress, by Thomas H. Neale.

CRS-10
CRS Report RS21017. Terrorist Attacks and National Emergencies Act
Declarations, by Harold C. Relyea.
CRS Report 98-505. National Emergency Powers, by Harold C. Relyea.