The “Continuity of Government” Proposal – A Dangerous and Unnecessary Threat to Representative Rule
June 30, 2003
HON. RON PAUL OF TEXAS
2003 Ron Paul 72:1
The COGC Proposal
The “Continuity of Government Commission” (COGC),
spearheaded by the Brookings Institution and the American Enterprise
Institute,
recently issued proposals for the operation of Congress following a
catastrophic
terrorist attack. Specifically,
COGC advocates a constitutional amendment calling for the
appointment
of
individuals to the House of Representatives to fill the seats of dead
or
incapacitated members, a first in American history.
An examination of the proposal reveals that it is both
unnecessary and dangerous.
2003 Ron Paul 72:2
Note that COGC is “self-commissioned,” its members being neither elected nor appointed by any government body.
The biographies of the commissioners
demonstrate that COGC is
made up mostly of professional lobbyists. Of course COGC is
well-intentioned,
but the nation should know exactly who is trying to substitute their
wisdom for
that of James Madison, Alexander Hamilton, and other framers of the
Constitution. I think most
Americans would prefer that proposals to amend the Constitution come
from
elected lawmakers or grassroots efforts, not from think tanks and
lobbyists.
2003 Ron Paul 72:3
One reading the COGC proposal cannot help but sense the
familiar Washington conceit at work, a conceit that sees America as
totally
dependent on the workings of Capitol Hill.
It is simply unthinkable to many in Washington that the American
people
might survive a period in which Congress did not pass any new laws.
But the truth is that the federal state is not America.
The American people have always been remarkably resilient in the
face of
emergencies, and individual states are far more equipped to deal with
emergencies and fill congressional vacancies than COGC imagines.
2003 Ron Paul 72:4
COGC is Unnecessary
Every generation seems to labor under the delusion
that it lives in the most dangerous and turbulent time in human history.
COGC certainly proves this point. Its
proposal provides doomsday scenarios designed to make us believe that
the threat of modern terrorism poses a much greater risk to our government
institutions than ever existed in the past. Yet
is Congress really more vulnerable than it was at the height of the
Cold War, when a single Soviet missile could have destroyed Washington? Surely
Congress faced greater danger in 1814, when the British army actually invaded
Washington, routed the city, and burned down the White House!
Somehow the republic survived those much more perilous times
without a constitutional amendment calling for the emergency appointment of
Representatives.
2003 Ron Paul 72:5
The scenarios offered by the commission, while theoretically possible, are highly unlikely to disable Congress.
Remember, a majority of members assemble
together in one place only rarely; even during votes most members are not on the floor
together at the same time Inauguration
ceremonies and State of the Union addresses often bring together a
majority of members in the same place, but simple precautions could be taken to
keep a sufficient number away from such events. Even
a direct terrorist attack on the Pentagon failed to disrupt the
operation of the Department of Defense. The COGC
proposal exaggerates the likelihood that a terrorist strike on
Washington would incapacitate the House of Representatives, and exaggeration is a bad
reason to amend the Constitution.
2003 Ron Paul 72:6
Existing Constitutional Provisions are Adequate
It is important to understand that the
Constitution already provides the framework for Congress to function after a catastrophic
event. Article I section 2 grants the governors of the various states
authority to hold special elections to fill vacancies in the House of Representatives.
Article I section 4 gives Congress the authority to designate
the time, manner, and place of such special elections if states should fail to
act expeditiously following a national emergency.
As Hamilton explains in Federalist 59, the “time, place, and
manner” clause was specifically designed to address the kind of extraordinary
circumstances imagined by COGC. Hamilton
characterized authority over federal elections as
shared between the states and Congress, with neither being able to
control the process entirely.
2003 Ron Paul 72:7
COGC posits that states could not hold special elections quickly enough after a terrorist act to guarantee the functioning of
Congress. But even COGC reports that the average length of House
vacancies, following the death of a member until the swearing in of a successor
after a special election, is only 126 days. Certainly
this period could be shortened given the urgency created by a terrorist
attack. We should not amend the Constitution simply to avoid having a
reduced congressional body for a month or two.
2003 Ron Paul 72:8
In fact, Congress often goes months without passing significant legislation, and takes long breaks in August and December.
If anything, legislation passed in the aftermath of a terrorist
event is likely to be based on emotion, not reason.
The terrible Patriot Act, passed only one month after September
11
th
by a credulous Congress, is evidence of this.
2003 Ron Paul 72:9
Also, advances in technology can be used to reduce the risk of a disruption in congressional continuity following an emergency.
Members already carry Blackberry devices to maintain
communications even if cut off from their offices. Similar technology can be used to allow
remote electronic voting by members. Congress
should focus on contingency plans that utilize technology, not a
constitutional amendment.
2003 Ron Paul 72:10
States have a wide variety of electronic and telephonic technology at their disposal to speed up the process of special
elections. Consider that popular television shows hold votes that poll
millions of Americans in a single night! Yet
COGC ignores alternatives to standard voting and incorrectly assumes
that states will be in disarray and unable to hold elections for months.
2003 Ron Paul 72:11
COGC is Dangerous because the House Must Be Elected
At its heart, the COGC proposal is fundamentally
at odds with the right of the people always to elect their members of the House
of Representatives. The House must be elected. Even “temporary”
appointees would be unacceptable, because the laws passed would be
permanent.
2003 Ron Paul 72:12
The problems with appointment of “representatives” are obvious. COGC calls for a general
constitutional amendment that gives Congress wide power to make rules
for filling vacancies “in the event that a substantial number of members
are killed or incapacitated.” Such an
amendment would be unavoidably vague, open to broad interpretation and
abuse. In defining terms like “vacancy,” “substantial,” and
“incapacitated,” Congress or the courts would be setting a dangerous
precedent for a more elastic constitutional framework.
Members of Congress simply cannot appoint their colleagues; the
conflict of interest is glaring.
2003 Ron Paul 72:13
Alternate proposals allowing state governors to appoint representatives from a list of successors nominated by members are no
better. The House of Representatives represents the people, not the
states. Single states often exhibit wide variations in political makeup
even among voters of the same party. Appointment
by governors, even though the successors represent the dead member’s
party choice, could change the ideological composition of Congress contrary
to the will of the people. Furthermore,
voters choose an individual candidate, not a panel.
They should not be required to consider the qualifications of a
candidate’s potential successors.
2003 Ron Paul 72:14
COGC focuses on government legitimacy, arguing that a House of Representatives with only a handful of surviving members would not
be seen as legitimate by the public. In fact
the opposite is true: appointed “representatives” will never be seen as
legitimate and in fact would not be legitimate. Without
exception, every member of the House of
Representatives has been elected by voters in the member’s district.
Madison states in Federalist 52 that “The
definition of the right of suffrage is very justly regarded as a fundamental article of
republican government.” The very legitimacy
of the House of Representatives is based on its constitutional status
as the most directly accountable federal body.
2003 Ron Paul 72:15
The House passes numerous laws, often by voice vote, with very few members present. The
legitimacy of those laws is not called into question.
Even a House made up of only five elected members would have
more legitimacy, as the living continuation of the only elected entity
in government, than a House composed of five surviving members and 430
appointees. Furthermore, even a decimated House membership would have to
pass legislation with the concurrence of the Senate, which could be restored
to full strength immediately by state governors.
2003 Ron Paul 72:16
Consider a scenario COGC forgot to mention. Imagine a terrorist strike kills a majority of members of the House of
Representatives. 200 members survive, and 235 are appointed by state governors on
a “temporary basis.” This new
body considers a bill that drastically increases taxes to pay for
emergency measures, while suspending civil liberties and imposing martial law.
The bill passes, with 195 elected members opposed and all 235
appointed members in favor. Only 5 elected
members support the measure. Would
the electorate consider this legislation legitimate?
Hardly. Yet this is the type of outcome we must expect under the COGC proposal.
2003 Ron Paul 72:17
Conclusion
To quote Professor Charles Rice, a distinguished
Professor Emeritus at Notre Dame Law School: “When it is not necessary to amend
the Constitution, it is necessary not to amend the Constitution.”
We must not allow the understandable fears and passions
engendered by the events of September 11
th
to compel a rushed and grievous
injury to our system of government. The
Constitution is our best ally in times of relative crisis; it is
precisely during such times we should hold to it most dearly.
Rather than amending the Constitution, Congress should be
meeting to discuss how to preserve our existing institutions- including an elected
House- in the event of a terrorist attack. The
Constitution already provides us with the framework, while technology
gives states the ability organize elections quickly.
The COGC proposal not only makes a mountain out of a molehill,
but also acutely threatens the delicate balance of federal power established in
the Constitution.
Note:
This chapter was posted in Ron Paul’s Congressional website, perhaps composed for inclusion in Congressional Record, but it was not inserted in Congressional Record.
