25 Year Later, We Still Haven’t Dealt with the Continuity Gaps in Our Government

Even after 9/11, crises, and attacks domestic and foreign, our system remains unprepared for the aftermath of a mass catastrophe. What will it take?

Today marks the 25^th anniversary of one of the most searing events in modern American history — a day that will live in infamy, a day so many Americans and I remember vividly. That morning, I drove to Dulles Airport to fly to Norfolk to speak at a conference of government ethics experts. It was a beautiful, cloudless day. When I got to the airport, it was abuzz with anxious chatter about the first plane that had hit the World Trade Center; the speculation was that it had been a small private plane that had flown off course. I arrived at my gate and was on the jetway to board when we were called back. The second plane had hit. This was a terrorist attack.

My office, blocks from the White House, had alerted us not to come downtown, as other attacks might occur. So I drove home and watched TV. When the news emerged that United 93 had crashed in Pennsylvania, I had an instant revelation. That plane had left Newark 45 minutes late, enabling its passengers to learn of the earlier attacks and realize their plane was not just being hijacked. It was a suicide mission. Had the plane left on time, at around 9:30 a.m. it would have struck the Capitol dome, a building and grounds where many lawmakers were doing interviews, meeting constituents, and holding court. Molten cast iron, chunks of marble, and burning jet fuel would have fallen on and around them.

Hundreds of members of Congress would have died, been severely incapacitated, or trapped in the rubble. The Constitution is clear in Article I: the quorum required to do any official business in the House and Senate is half of the membership; anything less would mean no Congress. For the House, where the only way to fill a vacancy is by special election, we would have gone months without a Congress. At a critical crisis point in America, that would have yielded the equivalent of martial law — which is unacceptable in our democracy.

A few days later, I wrote a column in Roll Call about the gaps in our Constitution and law regarding continuity of government — gaps the Framers never could have imagined, which emerged in the 21st Century and needed to be addressed immediately. I soon received a call from Rep. Brian Baird, who told me that in the chaos on Capitol Hill following the devastation at both the World Trade Center and the Pentagon, with members running every which way, with no plan and no escape routes, the same thought had occurred to him.

The urgency to take action was heightened soon after by a serious anthrax scare, whose target included the Senate. While senators in most states can be replaced by gubernatorial appointments, that does not work for incapacitated individuals. If the anthrax attack had been a broader terrorist assault and had entered the Senate’s aeration system, we might have had 60 or more senators on ventilators, rendering our Senate out of commission indefinitely.

I wrote more on this urgency, and was contacted by Lloyd Cutler, the brilliant super-lawyer who had been counsel to two presidents. He suggested forming a blue ribbon commission to work through options of what to do next — while also considering our inadequate safeguards for continuity in the other branches of government. Together, as a joint AEI-Brookings endeavor that I forged with scholar Tom Mann, we put together a remarkable group of former top government officials and scholars, co-chaired by Cutler and former Senator Alan Simpson.

After hearings and seminars, deep research and dialogue, we issued three reports — on Congress, the presidency, and the Supreme Court. We called for a constitutional amendment to allow emergency interim appointments: for the House and Senate, when a threshold of dead or incapacitated members occurred; for vacancies, until reasonable special elections could be held; and for the incapacitated, until they were well enough to sign affidavits that they were ready to return to office.

Presidential succession had last been addressed by Harry Truman in 1947, and our research revealed it was both out of date and full of holes. Everyone in the line of succession is based in Washington, meaning a serious attack on the capital city could leave no one directly in line, and likely to be confused in the fog of war. Truman had insisted on including congressional leaders at the top of the line, right after the vice president. First the Speaker of the House, then the president pro tempore of the Senate, followed by the cabinet in order of the creation of their offices. There were serious questions over whether it is constitutional to have members of the legislative branch in the line, when the Constitution refers to “Officers,” i.e., executive branch officials. There was also the question of whether it would be appropriate — if there were vacancies in both the presidency and vice presidency — to have a congressional leader of the other party assume the presidency, obviating the choice of voters for possibly years. These questions remain.

To get around the first concern, the 1947 Presidential Succession Act required the Speaker or president pro tempore to resign from their legislative positions to accept the status as interim president. But the 1947 Act had a kicker. Out of fear that the Speaker might be out of town or unavailable after a crisis, the Act stated that a House Speaker could bump the individual who had acceded to the position. That inadvertently gave the Speaker immense power — to, in effect, blackmail the acting president by saying, “Do what I say, or I will remove you and take your place in the White House.”

There was another issue, one that has been true since the Presidential Succession Act of 1886 removed congressional leaders and replaced them with the president’s cabinet. Cabinet members are not chosen because they are qualified to step into the presidency. Substantive expertise or experience, geographical locations, ideological stances, and other characteristics determine cabinet choices. So our commission recommended eliminating members of Congress from the line and adding a group of distinguished individuals, to be nominated by the president and confirmed by the Senate as “Officers,” bringing them into the loop to be prepared in case of disaster. We also recommended limiting the cabinet members in the line to the top four — State, Justice, Defense, and Treasury — who ideally carry sufficient breadth and expertise.

Next came the Supreme Court. Its only continuity plan is a statutory requirement of six justices to make a quorum. There are many inferior courts outside of Washington to act if the Supreme Court can’t. But having, say, multiple appeals courts decide highly sensitive issues, often contradicting each other, is far from ideal. And whether by terrorist attack or pandemic, the Supreme Court is vulnerable. Our report suggested creating an emergency interim court of appeals, consisting possibly of the chief judges of the thirteen circuits, along with any remaining Supreme Court justices.

A constitutional amendment is a challenge, but we hoped Congress would see the need and begin the process to get our recommendation (or some variant of it) underway. The presidential succession provisions and actions on the court only require legislation — not the high hurdle of an amendment. With some effort, including congressional hearings, the path to action seemed promising. Staff for then-Speaker Dennis Hastert expressed support; as did the chair of the Senate Judiciary Committee, Orrin Hatch.

The House proved a major challenge, thanks to strong opposition from two key Republican members, Judiciary Chair Jim Sensenbrenner (WI) and Rules Committee Chair David Dreier (CA). Those happened to be the two committees that mattered most. Sensenbrenner’s opposition stemmed from his experience as a young man working in the Wisconsin state legislature, which had a Cold War-era provision requiring legislators to provide names of alternates in the event of a nuclear war. But in a conversation we had in his office, it became clear he was also miffed that he had not gotten the attention he craved on this issue. When I talked to his colleagues in both parties, the word that came up repeatedly was “obdurate.”

Dreier’s opposition was rooted in his passionate belief that what made the House of Representatives special was that no one had ever served without being elected. I had worked closely with him on previous reforms, considered him a friend, and tried strenuously to convince him that the alternative was no House for months, if not longer. He would not be moved.

Hatch was particularly enthusiastic after we received support from Texas Republican Senator John Cornyn and his Wisconsin Democratic counterpart Russ Feingold, respectively the chair and ranking member of the Senate Subcommittee on the Constitution. Feingold held blanket opposition to constitutional amendments, believing that embracing one put us on a slippery slope to more amendments, so his support was both surprising and welcome. He saw the need, and the subcommittee passed a constitutional amendment and sent it to the full committee.

Simpson, Cutler, Tom Mann and I, along with our staff director John Fortier, were exultant…until we got a very different reaction from Hatch. Enthusiasm had turned to the opposite. We suspected something dark, and learned via gossip that Sensenbrenner had told Hatch that if he brought up the continuity provision, he would lose any cooperation with the House Judiciary Committee, threatening all his other priorities.

Because of the distinguished character of our commission members, the ardent support of members like Brian Baird, and the reality that there are alarming holes in our system, both Sensenbrenner and Dreier received heat from the opposition. Their response was to implement an unenforceable law and unconstitutional rule in the House, which required that special elections to the House in the event of a disaster would have to be done within 49 days.

Most special House elections, done without any emergency, take four months on average. A special election requires time to hold nominations, secure polling places, print ballots (which require special paper), and more. Most election administrators claimed that 49 days was not realistic — and absurd if more than 200 races were taking place after a massive attack. An election in 49 days would mean a tightly compressed period with no primaries, determined by party officials, undermining Dreier’s utopian idea of a House filled by voters, not by elites. No matter; it passed.

Dreier implemented a rule waiving the quorum requirement in the event of a catastrophic event — plainly unconstitutional, but still done. It remains part of House rules.

We found members interested in reforming the presidential succession process, but not enough to even secure serious hearings. Vice President Dick Cheney, who was supportive of congressional continuity, made clear that he had no interest in providing support for reform of presidential succession. As for the Supreme Court, my outreach to new Chief Justice John Roberts was met with a cold “no interest.” Though I was able to convince California Senator Diane Feinstein, chair of the Senate Judiciary Committee, of the idea of creating a special court of appeals in the event of a crisis in Supreme Court continuity, nothing happened.

The lack of action was not partisan, despite the critical obstacles created by Sensenbrenner and Dreier. Democrats recaptured majorities in the House and Senate, but we were still unable to gain more momentum or focused interest. Such unwillingness to act on long-term institutional issues is nothing new. (It took two presidential assassinations, with no safety net in place and no successor available, to trigger the 1886 presidential succession act.)

Dealing with their own continuity gaps raised uncomfortable issues for lawmakers. This was partially due to confronting their mortality (the same superstition that prevents smart, educated couples from executing wills, even if they are traveling and leaving small children behind). Another suggested option, having members either run with a designated successor or choose a list of five alternatives under seal in the office of the Clerk of the House, for the state’s governor to choose from, could mean leaving disgruntled friends and supporters off the list — or could raise extraneous campaign issues.

Then came another crisis that should have triggered decisive action: the attempted assassination of many House Republicans at practice before the annual congressional baseball game in June 2017, which nearly killed Republican Whip Steve Scalise, putting him in the hospital and in rehab for fourteen weeks. This horrific close call inspired support from some members who had not considered the continuity issue.

That awful act raised a new issue. Both the House and Senate have regularly (of late) held close margins for the majority, along with wide, deep differences between the polarized, tribalized parties on policy and priorities. 9/11 was about taking out a majority of government officials. But the threat of targeted terrorism — assassinating a small number of members to change the majority — suddenly loomed large.

A new opportunity for action came in 2019, when Speaker Nancy Pelosi moved to create a House Select Committee on the Modernization of Congress, with Washington Democrat Derek Kilmer as chair. Kilmer took a strong interest in the continuity issue and worked with us to move forward on our plan for House replacements. The committee held hearings, but opposition from a few colleagues meant no action was taken.

Then came COVID, raising yet another stark concern. Congress requires its members to meet face-to-face (the term “Congress” comes from the Latin, meaning to come together). A pandemic possibly leaving members quarantined in their districts for days, weeks, or even months, unable to meet collectively, could create another crisis of governance. Congressional action might be required to deal with health concerns or other crises.

The nation became widely aware of COVID in March 2020. Ten months later came January 6, 2021. As I wrote in its aftermath:

“The ease with which domestic terrorists were able to overpower the skeletal crew of Capitol Police guarding the Capitol—with at least some of those police complicit—was shocking. In part, it reflects the sobering fact that 19 years after 9/11, the building itself has still not been hardened to prevent forced entry—things like bulletproof and shatterproof glass on doors and windows, reinforced doors to close and lock immediately when an assault occurs.

But fixing those things alone is not enough. Clearly, some in the mob that entered the Capitol wanted to kidnap and likely kill key members of Congress. There were incendiary bombs and other weapons nearby that could have blown up the building from inside, killing as many or more legislators as would have perished on 9/11. Selected assassinations, with a Congress with very thin majorities in both houses, could have altered the balance of power and created a new majority at a pivotal time.”

These events created an impetus to recreate our Continuity of Government Commission; another joint effort of AEI and Brookings. This time it was co-chaired by Republican AB Culvahouse and former Rep. Donna Shalala, an original member of the Continuity Commission. We attracted another remarkable, bipartisan group of distinguished academics and former government officials from all three branches.

This commission, at the passionate urging of member Brian Baird, focused not just on continuity of government but on continuity of representation. There were two focal points. One, which we raised after the attempted assassinations at baseball practice and which was amplified by the violent insurrection, was the crisis that could be caused by the deaths of a small number of lawmakers, which could change the majority. The second was whether it was appropriate for a district or state to go for months without a vote or representation.

The panel issued a new set of extended reports on Congress and the presidency, offering recommendations including interim appointments for all vacancies, both for continuity and to send the message to potential assassins that they did not have the power to shift party control.

The positive result? Five excellent, detailed reports to repair an antiquated, inadequate set of laws and constitutional procedures that could potentially trigger catastrophes in governance. The bad news, of course, is that we have spent a quarter century raising warning flags inspired by abundant crises, with no lasting results to remedy the flaws, and no expectation of action any time soon.

Today, we face much larger immediate threats to our fundamental constitutional structure — call them terrorist attacks from within — and are made vulnerable by the current Republican Congress, a model of fecklessness and abdication of fundamental responsibility. If and when we regain some semblance of integrity and respectability in Congress, we must revisit the continuity issues before we face the worst-case nightmare the two commissions were created to resolve.