House Vacancies: Proposals for Filling Them After the Death or Injury of Large Numbers of Members, 2005-2006

House Vacancies: Proposals for Filling Them After the Death or Injury of Large Numbers of Members, 2005-2006

Order Code RS22067
Updated August 9, 2005
CRS Report for Congress
Received through the CRS Web
House Vacancies: Proposals for Filling
Them After the Death or Injury of Large
Numbers of Members, 2005-2006
R. Eric Petersen
Analyst in American National Government
Government and Finance Division
Summary
Since the September 11, 2001 terrorist attacks and the anthrax incidents that
happened shortly thereafter, debate on how best to preserve an effective and
representative House of Representatives in time of crisis has continued. At issue are (1)
how to quickly replace large numbers of Members who are killed or incapacitated in a
catastrophic event without sacrificing a House kept close to the people; and (2) what
vehicle to use, i.e., whether to amend the constitution, enact new federal law, or modify
House rules. During the 109th Congress, the House has passed a measure requiring
states to hold expedited special elections in extraordinary circumstances twice — first
(on March 3, 2005) as the Continuity in Representation Act of 2005 (H.R. 841), and
later (on June 22, 2005) as a provision (Title III) in the FY2006 legislative branch
appropriations bill (H.R. 2985). The Senate took no action on H.R. 841 and passed
(June 30, 2005) its version of H.R. 2985, which did not include the provision for
expedited special House elections in times of crisis. 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. The President signed H.R. 2985 on August
2, 2005 (P.L. 109-55). Three proposed constitutional amendments relating to
congressional succession or continuity of Congress (H.J.Res. 26, H.J.Res. 49, and S.J.
Res. 6) have also been introduced and referred to committee.
The September 11, 2001 terrorist attacks and the anthrax incidents that followed
shortly afterward, have prompted considerable interest inside and outside Congress in
finding ways to ensure effective and representative operations of the House in the event
of a terrorist or other kind of attack that could result in a large number of House
vacancies. Since then, several measures have been introduced as proposed constitutional
amendments, federal statutes, and House and Senate rules changes.1
1 This report was written by Paul S. Rundquist, and Sula Pat Richardson, who have retired from
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Congressional Research Service ˜ The Library of Congress

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Background
While the Constitution requires that vacancies in both the House and the Senate be
filled by special election, it empowers state legislatures to provide for temporary
appointments to the U.S. Senate by state governors until elections are held. House
Members, on the other hand, have always been chosen in one way — by direct election
of the people — and House vacancies have always been filled by special election. No
provision has been made for temporary appointments to the U.S. House of
Representatives.
Since September 11, 2001, proposals to amend the Constitution, enact federal law,
and change House rules regarding vacancies have been introduced.2 Eight such proposals
were introduced in the House or Senate during the 108th Congress. Six of them would
have amended the Constitution, to allow for the temporary appointment of individuals
pre-designated by Members (H.J.Res. 77, H.J.Res. 83, and H.J.Res. 92); to allow state
legislatures or governors to make temporary appointments (H.J.Res. 89); to authorize
Congress to provide a temporary appointment process (H.J.Res. 90); or to authorize
Congress to regulate temporarily filling vacancies by law (S.J.Res. 23). The remaining
two measures were proposed federal laws. One (H.R. 2844) would have required the
states to hold expedited special elections. The other (S. 1820), which was offered as
implementing legislation for S.J.Res. 23, would have authorized states to develop
mechanisms for temporarily filling vacancies in their congressional delegations if a
prescribed number of Members were killed, incapacitated, or otherwise unable to
discharge the duties of office. Many of these proposals were similar to others offered in
the 107th Congress, or were revisions of earlier plans.3
Issues in Debate
Amending the Constitution. As previously stated, the Constitution requires that
vacancies in the House be filled by special election; it makes no provision for temporary
appointments to vacant seats in the House. Accordingly, if temporary appointments to
the House are to be provided for, a constitutional amendment arguably would be the best
way to avoid constitutional challenges. Supporters contend that amending the Constitution
would demonstrate concurrence of the state legislatures because constitutional
amendments are effective only upon ratification by three-fourths of those state bodies.
They also point out that a constitutional amendment would treat the office of U.S.
Representative like that of U.S. Senator and President of the United States, both of which
1 (...continued)
the Congressional Research Service. The listed author updated the report and is available to
answer questions concerning its contents.
2 The time since the terrorists attacks is not the first period, however, in which Congress has
considered the issue. For example, from the 1940s through 1962, more than 30 proposed
constitutional amendments were introduced to provide for temporarily filling House vacancies
or selecting successors in case of the disability of a significant number of Representatives.
3 For further information on the proposals and other activity prior to the 109th Congress see CRS
Report RL31394, House Vacancies: Selected Proposals for Filling Them After a Catastrophic
Loss of Members, 2001-2004 by R. Eric Petersen.

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have definitive replacement plans that are constitutionally based (17th and 25th
Amendments).
On the other hand, critics argue that amending the Constitution is a cumbersome
process; additional terrorist attacks could occur before the process was completed.
Further, they contend that the office of U.S. Representative does have a constitutionally
based replacement plan — “writs of election,” as set forth in Article I, Section 2, of the
Constitution. They also note differences between the two houses of Congress. Unlike
U.S. Senators4 and U.S. Presidents, U.S. Representatives have the distinction of having
been chosen in but one way since the inception of their office — by direct election. In
addition, they point out that the scope of the issues and constituencies for governors and
U.S. Senators is, with rare exceptions, broader than it is for U.S. Representatives.
(Governors and U.S. Senators are elected by voters in the entire state, while U.S.
Representatives — except for those representing single district states — are elected by
voters in their congressional districts.) Moreover, some political observers believe that
a constitutional amendment is unnecessary, since change could be implemented through
less extreme means, such as by enacting federal legislation or by modifying House rules.
Enacting Federal Law Requiring Expedited Special Elections. Supporters
of a federal statute instead of a constitutional amendment contend that in the event of
mass House vacancies, Congress could exercise its constitutional authority to preempt
state law regarding the “Times, Places, and Manner of Holding Elections”5 for the House
and pass legislation that would require states to hold expedited special elections within
a specified time frame.6 They assert that the legislation could amend current law,7 which
leaves it to state law to determine when an election must be held to fill a House vacancy.
Supporters note that current provisions for filling vacancies in the House in non-
emergency situations would remain intact, and the expedited special elections provision
would be triggered only in the event of a significant number of House vacancies due to
a national emergency. Further, supporters argue 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
4 Prior to 1913, when the 17th Amendment was adopted, U.S. Senators were elected by state
legislatures.
5 U.S. Const. Art. I, § 4, cl. 1.
6 U.S. Congress, House Committee on the Judiciary, Subcommittee on the Constitution,
Temporary Filling of House of Representatives Vacancies During National Emergencies,
testimony and prepared statement of M. Miller Baker in 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, “Don Wolfensberger’s Proposal for Statutory and Rules Changes to Deal
with Mass Vacancies in the House of Representatives, February 18, 2002” at [http://
www.continuityofgovernment.org/pdfs/proposalwolfensberger.htm], visited June 20, 2005.
7 2 U.S.C., chap. 1, §. 8.

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candidates and issues. Shorter campaign periods also could 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. Moreover, if a number of states were attacked and
severely damaged, it might be difficult to hold elections in a timely manner. Finally, more
compressed campaign periods could put candidates who are not as well funded or as well
known at a disadvantage.
109th Congress
Proposed Federal Law. 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 proposal is similar to H.R. 2844, which the
House passed, 306 to 97, on April 22, 2004. H.R. 2844 was placed on the Senate
calendar; no further action on it was taken.) As passed in the House (329-68) on March
3, 2005, H.R. 841 would require states to hold elections not later than 49 days after the
Speaker of the House announces the vacancies in extraordinary circumstances. In the
Senate, H.R. 841 was placed on the Senate Legislative Calendar on March 19, 2005.
On June 16, 2005, during the House Appropriations Committee’s consideration of
its version of the FY2006 legislative branch appropriations bill, Chairman Jerry Lewis
offered an amendment that is identical to the text of H.R. 841, as passed in the House. The
amendment reportedly was offered at the request of Speaker Hastert.8 The committee
adopted the amendment (by voice vote) and reported the bill, as amended. Consequently,
as reported from committee, the bill — the Legislative Branch Appropriations, FY 2006
(H.R. 2985) — included as Title III, language that would provide for expedited special
elections to the House in the event of mass vacancies due to extraordinary circumstances.
The House passed (330-82) H.R. 2985 on June 22, 2005, after rejecting (143-268) an
amendment to strike Title III of the bill. The next day (June 23, 2005) the Senate
Appropriations Committee adopted a motion to strike Title III from H.R. 2985, as passed
by the House. The spending measure was reported out of the committee by a voice vote.
The Senate (by unanimous consent) passed H.R. 2985, with amendments on June 30,
2005, and asked for a conference with the House. The conference report to H.R. 2985
(H.Rept. 109-189) contained language providing for expedited special House elections
to fill mass vacancies in extraordinary circumstances. The House adopted (305-122) the
conference report on July 28, 2005. The next day, the Senate adopted (96-4) the
conference report. The President signed H.R. 2985 on August 2, 2005 (P.L. 109-55).9
Proposed Constitutional Amendments. On February 17, 2005, two proposed
constitutional amendments relating to congressional succession or continuity of Congress
8 Jonathan Allen, “Legislative Branch Appropriations: House Uses Must-Pass Bill as Insurance
for Congressional Continuity,” CQ Today, June 16, 2005 [http://www.cq.com], visited June 16,
2005.
9 For further details on H.R. 841 and H.R. 2985 see CRS Report RL32958, Continuity of
Congress: Proposed Federal Statutes for Expedited Election to the House in Extraordinary
Circumstances by R. Eric Petersen and Sula P. Richardson; and CRS Report RL32819,
Legislative Branch : FY2006 Appropriations, by Paul E. Dwyer.

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were introduced. Representative Dana Rohrabacher introduced H.J.Res. 26, a proposed
amendment to the Constitution that would require the election of a Representative along
with three “Alternate Representatives,” selected and ranked in order by the
Representative. It would also require the election of a Senator along with three “Alternate
Senators,” selected and ranked in order by the Senator. In the event of the death or
incapacitation of the Representative or Senator, his or her legislative duties and powers
would be assumed by the highest ranked alternate, according to the specified ranked order
of the alternates. The alternate Representative or Senator would serve as “Acting
Representative” or “Acting Senator” until the election of a new Representative and three
alternates, or the election of a new Senator and three alternates. The proposal, which is
similar to H.J.Res. 92 introduced by Representative Rohrabacher during the 108th
Congress, was referred to the House Committee on the Judiciary.
Senator John Cornyn proposed another constitutional amendment, which was
introduced on February 17, 2005, as S.J.Res. 6. The proposed amendment would
authorize Congress to enact law to:
provide for the case of death or inability of Members of the House of Representatives,
and the case of inability of Members of the Senate, in the event that one-fourth of
either House are killed or incapacitated, declaring who shall serve until the disability
is removed, or a new Member is elected. Any procedures established pursuant to such
a law shall expire not later than 120 days after the death or inability of one-fourth of
the House of Representatives or the Senate, but may be extended for additional
120-day periods if one-fourth of either the House of Representatives or the Senate
remains vacant or occupied by members unable to serve.
The proposal, which is similar to S.J.Res. 23, introduced by Senator Cornyn during the
108th Congress, has been referred to the Senate Committee on the Judiciary.
The third proposed constitutional amendment related to congressional succession
was introduced on May 12, 2005, by Representative Zoe Lofgren. H.J.Res. 49 would
authorize Congress, upon the approval of two-thirds of each house, to enact legislation
providing for temporary appointments to the House when, in a national emergency “30
percent or more of the seats of the House of Representatives are vacant due to death,
resignation or incapacity.” As of this writing, the proposed constitutional amendments
have been referred to committee.