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The terrorist attacks of September 11, 2001,propelled issues of security onto the nationalagenda. One area of debate is the continuity of government in the event of a cataclysmic attackthat destroys Congress. The Senate can be quick-ly reconstituted via the Seventeenth Amend-ment, but filling House vacancies requires spe-cial elections. The average House vacancy takesfour months to fill.In this paper, a variety of proposals for thequick reconstitution of the House are examined,and an effort is made to inform this debate fromthe perspective of federalism. Information on theconduct of special elections, the filling of statelegislative vacancies via appointment, and theelectoral success of appointed state legislatorsand appointed senators is presented to informthe prospects for popular control of an appoint-ed House. Proposed amendments to theConstitution are then evaluated in terms of theprospects for popular control, efficiency inimplementation, triggering mechanisms, andunintended effects.The case for a constitutional amendmentconcerning reconstituting the House is weak,especially given the risk of unintended conse-quences posed by such a major change.Legislative changes are preferable if action is nec-essary. In light of the costs of rapid special elec-tions, the questionable benefits of rapidly elect-ing House members after a disaster, and the very low probability that such a disaster will occur,the case for keeping the status quo remainsstrong.
 Restoring the U.S. House of   Representatives
 A Skeptical Look at Current Proposals
by Ronald Keith Gaddie
_____________________________________________________________________________________________________
 Ronald Keith Gaddie is a professor of political science at the University of Oklahoma and a litigation consultant inredistricting and election law cases. Rowman and Littlefield published his newest book,
Born to Run: Origins of the Political Career,
in December 2003.
Executive Summary 
No. 510February 17, 2004
 
Introduction
Modern technology makes possible theunleashing of destructive forces capable of disrupting or disabling American legislativeinstitutions. The need for a legislative branchof the U.S. government and the demand forlegislative activity in times of national crisishave focused the attention of scholars andlawmakers on issues of membership mainte-nance. The Constitution provides sufficientmechanisms to quickly reconstitute a Senatebereft of its quorum. The House, however, ispotentially vulnerable to long periods with-out a quorum, because of the constitutionalrequirement that members be directly elected.This paper explores proposed changes to theConstitution pertaining to the use of non-elected, temporary members to ensure conti-nuity of the U.S. House of Representatives.Issues of electoral control and accountability,efficiency, and possible unintended conse-quences are explored.
The Scenario
Nearly 300 tons of aircraft and fuelstruck the east face of the building at a top speed of three hundred knots. Theaircraft disintegrated on impact. No lessfragile than a bird, its speed and masshad already fragmented the columnsoutside the walls. Next came the build-ing itself. As soon as the wings broke up,the engines . . . shot forward, one of them actually smashing into andbeyond the House Chamber . . . the realdamage took a second or two more,barely time for the roof to start fallingdown on the nine hundred people inthe chamber . . . a second later it ignitedfrom some spark or other, and animmense fireball engulfed everythinginside and outside of the building.Tom Clancy,
 Debt of Honor 
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The above is the nightmare scenario, gov-ernment decapitated and the people’s repre-sentatives obliterated by an act of destructiveterror. In the blink of an eye, more than 90percent of the House and Senate is wiped outby an act of terror involving an unanticipatedturn by a renegade jetliner or the deploymentof some other weapon of mass destruction.How would we keep representative govern-ment functioning?The events of September 11, 2001, pro-pelled security issues to the forefront of thepolitical debate. Norman Ornstein, writingthat October in
 Roll Call 
, brought the topicout of the realm of fiction, noting that“absent [the heroism of passengers on UnitedFlight 93], the airliner might well have hit theCapitol—with both chambers of Congressfilled with Members at the time. . . . What if the terrorists had succeeded . . . obliteratingmany or most of the Members of the Houseof Representatives and the Senate?”
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Congress began considering ways torestore institutions of government.
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The con- versation turned to alternatives for dealingwith the sudden disability or death of mem-bers of the House in such large numbers as tothreaten the presence of a quorum. Underthe Constitution, we can certainly deal withthe prospect of sudden and massive vacan-cies in the House. Can we do so in a timely fashion? The initial report of the Continuity of Government Commission contains rec-ommendations on continuity of Congress,focusing on achieving a working and legiti-mate quorum in the House. The reasonsadvanced for quickly reconstituting a deplet-ed Congress were many, including the needto pass emergency assistance legislation, toaffirm war powers, and to provide for theactive oversight of the executive.The report concluded that proceduraloptions were insufficient to maintain thelegitimacy and speedy functioning of theHouse. Legislative remedies, and probably constitutional remedies, are required. Can a solution be devised that preserves the charac-ter of the House as the chamber closest to thepeople?
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 And should the solution be a one-size-fits-all national policy, crafted in a 
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Under theConstitution, wecan certainly dealwith the prospectof sudden andmassive vacanciesin the House. Canwe do so in atimely fashion?
 
detailed amendment? Or should Congress,or the states, be authorized to develop appro-priate statutory remedies? For that matter, isany solution required?
The Values at Stake
 Amendments to the U.S. Constitutionhave typically expanded popular democracy by extending guarantees of the franchise, by outlawing devices and practices that con-strain participation, or by expanding popularcontrol of government. The most conspicu-ous of those is probably the Seventeenth Amendment, which shifted control of theselection of U.S. senators from the state legis-latures to the people.The argument for popular control of theHouse is powerful. The Constitution veststhe choice of members of that chamber in thepeople, and indeed it was only in the Housethat the people originally possessed a direct voice. Constitutional law has been consis-tently interpreted to further refine the accu-racy of the voice of the people, through guar-antees of minority rights and assurances of equal apportionment.It is possible that nonelected members, lack-ing popular control by the electorate, will act ina manner that is not in the best interests of thenation or the constituency. For example, sever-al proposals foresee designation of Housemembers by a state’s governor. Given the highrates of incumbent reelection in the House, theappointed members would win reelection,thereby making succession in the House a faitaccompli. Designees or appointees might seizethe reins of government and the advantages of incumbency without winning an initial electionunder competitive circumstances.If we choose to allow appointed representa-tives, democratic accountability can be retainedby other means. The ability to choose and con-trol temporary representatives can be placedclose to the electorate, as it is in the states. Policy of this sort is created by those who can be heldaccountable to the electorate and should fulfillthe constitutional mandate to guarantee conti-nuity of the national legislature, while alsoreflecting local preferences about exercisingpopular control of representation. If a proce-dure for the emergency restoration of Congressis deemed necessary, the choice is between craft-ing an amendment to allow policy that is con-trolled by the central government and policy that is controlled by the variety of state govern-ments. If empirical evidence shows that the elec-torate can exercise substantial control overappointed legislators, then fears about tempo-rary, appointed legislators are lessened.Federalism is the second value at stake inthese debates. Although the last century saw considerable centralization of power, theUnited States has a long history of decentral-ized state authority. If we do not have strongreasons to have Washington decide the ques-tion of how House members would be replaced,that decision ought to be left to the states.
Current Law and Policy Governing CongressionalVacancies
U.S. Senate
The Senate was originally selected by thestate legislatures. However, Article I, § 3, of the U.S. Constitution permits the state gov-ernors to appoint temporary senators if “Vacancies happened . . . during the Recess of the Legislature of any State . . . until the nextmeeting of the Legislature.” The Seventeenth Amendment grants to state legislatures theauthority to empower governors to maketemporary appointments to vacant seats,until such time as an election is held. Moststates allow their executives to make suchappointments; only Arizona absolutely requires an immediate special election to filla Senate vacancy.
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U.S. House
 Vacancies in the House are filled by specialelection or by the next regularly scheduledgeneral election. Under Article I, § 2, of theConstitution, “when vacancies happen in theRepresentation of any state the executive
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If we do nothave strongreasons to haveWashingtondecide thequestion of how House memberswould bereplaced, thatdecision ought tobe left to thestates.
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