TCS Daily

Congress Writes a Will

By Charles Matthew Rousseaux - June 17, 2004 12:00 AM

Wills are usually only exciting to their writers, giving them a good chance to chuckle about leaving a good chunk of their estate to a beloved cat instead of a ne'er-do-well nephew. Unfortunately, while writing its own will, the Congress seems determined to make different kind of cat-astrophic mistake.

Congress could have crossed the line from daily dysfunction to total non-function on the eve of Ronald Reagan's state funeral when an errant plane -- later identified as that of Ky. Gov Ernie Fletcher -- caused an emergency evacuation of the Capitol. If Flight 93 had been allowed to take the Tom Clancy flight path of slamming into the Capitol on September 11, 2001, killing or incapacitating many members of Congress, it would have almost certainly been years before the body was brought back to its normal (dysfunctional) state.

The delay might have been deadly. In the days that immediately followed, Congress granted President Bush authority to prosecute the war, appropriated $40 billion to recover and respond to the attacks and approved other measures aimed at stabilizing the economy and securing the country.

Unfortunately, the dangers of September 11 persist, since worthwhile will bills continue to be killed. The House recently rejected a proposed constitutional amendment which would have allowed governors to name temporary replacements to seats suddenly vacated by deceased representatives. The people of the "People's House" are holding to the principle of direct elections. Last month they passed a measure sponsored by Rep. James Sensenbrenner, chairman of the Judiciary Committee, which calls for special elections to be held within 45 days of a disaster that causes 100 or more permanent absences, as certified by the House Speaker.

There are a number of problems with that approach. In a Washington Post column published shortly after the vote, the American Enterprise Institute's Norman Ornstein argued that the legislation's time constraints would make legitimate elections almost impossible. Even worse, the Sensenbrenner bill says nothing about incapacitated members -- those who might be in burn wards or under quarantine.

Mr. Ornstein and a number of others, including a bipartisan group of former legislators and policy experts from the Continuity in Government Commission, and several current legislators like Sen. John Cornyn back the wiser approach of a constitutional amendment. The Texas senator has introduced legislation which would allow states dealing with the aftermath of a debilitating national emergency to replace lawmakers by whatever method they choose -- such as gubernatorial appointment or from a list of successors previously chosen by the legislator -- until a special election could be held. It applies only to senators but could be adopted for representatives. Unfortunately, given the orientation of the House and the limited time on the legislative calendar, his bill is likely just to remain a just a bill -- sitting there on Capitol Hill.*

Mr. Cornyn's bill makes specific provision for incapacitated members, but defining exactly what that means will be difficult. Arguably, many senators have been incapacitated for decades, though there's little chance that they will ever be certified as such. The problem brings to mind Monty Python's plague-stricken peasant, "I'm not incapacitated yet."

In a recent Washington Post oped, Mr. Sensenbrenner and Rep. David Drier, chairman of the Rules Committee, claimed that a solution for incapacitation "is certainly being sought," and that that problem should not stand the way of the principle of direct election of House members. They wrote that amendments, "Would deny the right to elected representation and accomplish what no terrorist could by striking a fatal blow to 'The People's House,'" adding a bit later, "Every House... has rejected such constitutional amendments and chosen instead to ensure that the people always have a voice in their government by maintaining the uninterrupted House tradition of elected representation."

While the argument has strong historical resonance, it seems to miss the fundamental point that the first duty of government is self-preservation (an idea that does not extend to all the tentacles of the bureaucracy). The continuance of constitutional government is more important than how its leaders are chosen. After all, different methods for doing so were established under the Constitution -- senators were long chosen through state legislatures; the president is still chosen through the Electoral College. So why did the founders establish the practice of direct biennial House elections? According to Madison in the Federalist 52, it was a method of balancing representatives between the will of the people and the will of the more permanent branches of government. In the Federalist 57, Hamilton argued that frequent elections would keep legislators dependent on the people who put them there. Temporary legislative appointments during an emergency do not run counter to those principles.

Messers Sensenbrenner and Drier offered Madison's fear that the "gradual abridgement" of direct representation would result in a slide towards aristocracy. But that anxiety seems misplaced since the appointment of legislators due to their sudden loss would scarcely be gradual. Moreover, Madison himself discounted the then common wisdom that "where annual elections end, tyranny begins," in The Federalist 53.

While perhaps the only thing more dangerous than a dysfunctional government is one that doesn't function at all, Congress should not be stopped at the exact moment that something more than deliberative speed is a national necessity. The best way to preserve the liberties of the ballot box is to ensure the quick, legitimate continuance of representative government.

Any nephew who has ever been bequeathed two flowerpots and a leaky garden hose from a well-to-do uncle would agree that wills are worth watching. The public should keep an eye on Congress until it gets its will bill right.

Charles Rousseaux is an editorial writer for The Washington Times and a frequent TCS contributor. E-mail:

* It will be a long, long wait while it's sitting in committee, but it still might be a law someday. At least it hopes and prays that it will but today it is still just a bill.


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