What If
3/9/2004 | | Alumnus Norm Ornstein. Photo collage by Kay Cherush. |
By Richard Broderick
As a student of government, Ornstein—resident scholar at the American Enterprise Institute for Public Policy Research and one of the most respected analysts of U.S. political institutions in the country—knew that issues of succession are hardly settled law. Among other dire possibilities, he could foresee a moment when, after the above-mentioned nuclear explosion, a half-dozen surviving members of the House of Representative might declare themselves a quorum, elect a new Speaker of the House, who would then automatically become president—and be in a position to appoint a whole new U.S. Supreme Court.
Out of these nightmarish scenarios, Ornstein immediately issued a ringing call to action in the column he writes for Roll Call, the ultimate insider government publication, and began working to form a blue-ribbon commission to look into possible solutions. The Continuity of Government Commission, created largely because of Ornstein's efforts, is composed of a who's who of American politics, including such notables as Newt Gingrich, Donna Shalala, Kweisi Mfume, and Leon Panetta. In spring 2003, the commission issued its first report, which called for a brief constitutional amendment delegating to Congress the power to redress the issue of succession. The commission is now working on reports covering the executive and judicial arms of the federal government.
Born in 1948, Ornstein spent his early years in Grand Rapids, Minnesota, before moving with his family to the Twin Cities. After his parents moved to Canada, he returned to the Twin Cities to attend the University of Minnesota, where he earned a bachelor's degree in political science. In addition to his column in Roll Call, Ornstein is a regular contributor to numerous other publications, including USA Today, where he is on the board of contributors, and has served as an election analyst for both CBS News and cable television's Comedy Central. He is the founder and director of the Campaign Finance Reform Group and was instrumental in refining the McCain-Feingold bill, making it possible for this landmark legislation to withstand its recent Supreme Court review. He is also currently a Distinguished Visiting Fellow with the Humphrey Institute's Center for the Study of Politics.
Q: The Continuity of Government Commission is calling for a constitutional amendment to address the issue of congressional succession—and will do the same in its reports on the presidency and the Supreme Court. Is something radically wrong with the current rules governing succession?
A: Although we might never have been jogged into thinking we had a problem if it weren't for 9/11, it's clear that throughout the history of the American republic we've gone through gaps in time when there's been a real lack of governing continuity and it's often taken a crisis to move us enough to try to fix them.
Take just one example: Woodrow Wilson ended up comatose for many months at the end of his presidency. We know now from ample documentation that during this period his wife ran the country because there was nothing in the constitution to deal with presidential incapacitation. We didn't get around to fixing that problem until the 26th amendment was ratified following the Kennedy assassination.
At other times following presidential assassinations or when a president has died in office of natural causes, we've gone through periods when, because the vice president has succeeded the president, we had no vice president in office. The fact is, we don't have a real history of doing things to rectify these kinds of problems quickly or with much forethought. What we've ended up with now is a series of holes in the constitution and succession laws that weren't necessarily going to be apparent to the framers of the constitution or their successors until the age of terrorism suddenly made them apparent.
Now, during the Cold War we did recognize that there was a threat to the continuity of Congress and the presidency, but this was focused on the possibility of a nuclear attack resulting from our confrontation with the Soviet Union. In response to that threat we created a secret underground bunker for Congress located about a two-hour drive south of Washington. For security reasons, most members of Congress didn't even know the bunker existed.
The thesis behind this bunker was clear. In the case of a nuclear attack, we'd have between a half-hour and an hour to evacuate members of Congress and move most of them to safety. At the same time, we created a series of underground bunkers for the president and the cabinet. We also initiated a fail-safe plan, in which the vice president or some senior cabinet member does not attend events like the State of the Union address.
But what 9/11 told us was that, one, we live in a world where mass destruction or incapacitation of people can take place without any notice and, two, the weapons potentially available to terrorists could take out the better part of a city.
Q: How long after 9/11 did it take before these problems became apparent to you?
A: When it turned out that the fourth plane was indeed involved in a terrorist attack and my gut instinct told me that it might be headed for the Capitol dome, several things went though my head that very morning. In rapid succession it came to me that we had no plan in place to fill Congress if it dropped below a quorum because of deaths or because you had a lot of senators and representatives in burn units or receiving care because they'd been exposed to anthrax spores. Later on I began to focus on the gaps in the laws of succession as they relate to the White House and Supreme Court.
Q: How were the commission's co-chairs—Alan Simpson, former Republican senator from Wyoming and minority whip, and Lloyd Cutler, who served as counsel to presidents Jimmy Carter and Bill Clinton—chosen?
A: We wanted to choose people with influence and prestige who covered the political and ideological waterfront, not just people whose conclusions on this issue we knew in advance. Tom Mann of the Brookings Institution sat down with John Fortier, my colleague at the American Enterprise Institute and me, and we made up lists. Most of the kinds of people you'd want for this kind of thing are way overextended. Once we settled on Simpson and Cutler it was easy. Cutler had actually contacted me after my initial article in Roll Call and asked, "What can we do?" He and I sat down to brainstorm a blue-ribbon commission. And Simpson I'd come to know during his time in the Senate as a thoughtful institutionalist. Once we had the two of them, it just took several calls to enlist the other [commission] members.
Q: Was there initial agreement about proposing a constitutional amendment or did that take some discussion?
A: When we first started out, a lot of members were skeptical of a constitutional amendment. But by the time we went through a series of hearings and heard some testimony and began working through some options, everybody came around to the inescapable conclusion that there were only a couple of options. One, hope you never face a terrorist attack on government. Two, create a mechanism for an emergency appointment process for both houses of Congress or we potentially end up with a major problem.
Once we came to that conclusion we were left with the task of determining what kind of amendment we would propose. One with less detail could leave open the possibility of manipulation by politicians, but more detail would clutter the constitution and potentially create other problems simply because it isn't possible to anticipate every contingency.
The last thing you want to do is put a lot of detail into a constitutional amendment, find out after its passage that parts of it don't work, and find yourself in a situation where the only way you can fix the problem is to pass another amendment. We concluded that the best way to deal with this was to write a brief amendment delegating the power to address the succession problem to Congress while also coming up with concrete proposals ready to go if and when an amendment is passed (see page 28). Part of the reason we opted for this approach is because it parallels the path chosen by the framers of the constitution who delegated the question of presidential succession to Congress.
Q: The commission includes people from a wide ideological range. How did you manage to reach consensus?
A: It was actually much easier than I expected. I thought we'd have a clear majority but not unanimity. It wasn't easy to get that unanimity but in the end I was pleasantly surprised, even a little stunned, that everybody went along.
At the same time that probably made me feel more comfortable than it should have about getting consensus in Congress. I thought the biggest problem we'd face would be overcoming inertia and the same kind of reluctance people feel about writing a will—coming to grips with your own mortality. I've been taken aback by the strong opposition we've faced from some members of Congress.
My initial frustration with Congress came after my first article about the issue in Roll Call when it took months and months for it to set up its own working group. Still, I thought once the issue got rolling we'd get some leadership from the Speaker [of the House, Dennis Hastert (R-Illinois)], but I was just stunned and disappointed that Speaker Hastert—who likes to call himself an institutionalist and who has described himself sitting in his office on 9/11 and seeing smoke rise from the Pentagon and thinking, "There but for the grace of God . . ."—did nothing, didn't act, didn't try to delegate the issue and for two years basically sidestepped the whole question.
The other big disappointment is David Dreier [R-California], chair of the House Rules Committee. I've worked with him for 25 years on reform issues. He's a very thoughtful guy, but he has been a vociferous opponent on this on the grounds that the House should be an elected body. Period. But I thought once they saw that the choice was between something like this [a constitutional amendment] and having no Congress—between this and martial law—they would change their thinking. But that hasn't happened.
At the same time, people on both sides of the aisle in the House have stepped up to the plate, and we are getting real movement in the Senate on this and also on presidential succession from people like Trent Lott [R-Mississippi] and Chris Dodd [D-Connecticut], so there is good news there. But it's hard to get an amendment going if you have a Speaker who isn't engaged.
Q: I'd like to switch topics from the political to the personal. It's a long way from Grand Rapids to the D.C. Beltway. What, if anything, do you do to maintain an "outside the Beltway" perspective?
A: I travel a lot, giving speeches, attending conferences, visiting campuses. I have found this extremely valuable for me. I have a kind of M.O. I use when I go out on the road, which is: I read all the local newspapers and watch all the local news and, during campaign season, I will spend time in my room flipping through the TV channels reviewing political ads. Travel really does give you perspective. In Washington you can have a dispute going on over some cabinet member or a bill that people talk about constantly but then you go around the country and realize that it isn't even on people's radar.
Q: You seem to be an American version of a public intellectual, a role that, in Europe, has traditionally been filled by thinkers on the outside of the political system. In the United States, on the other hand, there is a marked overlap between public intellectuals, political institutions, and the national media—look at Richard Perle, a fellow resident scholar at AEI, a frequent guest commentator on TV, and a close adviser to Secretary of Defense Donald Rumsfeld, among other high-ranking officials. Would you comment on this?
A: It is different here than in Europe, partly because of TV and the rise of think tanks, many of which aren't really think tanks at all but lobbying organizations. Now we are seeing Europe fall in behind us, and I expect that in 10 or 15 years we will see the same kind of thing on the Continent as a lot more think tanks spring up there as well. And there will be much more of a revolving door between government and think tanks. What's clear is that the war of ideas is an integral part of the political wars, and coming up with ideas is very much a part of political struggle.
Here, as in Europe, most people who are public intellectuals have very strong ideological and political views. I try as best I can to avoid this. Mostly you see those kinds of things on cable TV shows with people shouting at each other. I did Crossfire a couple of times and Hannity & Colmes once. But generally I don't do that stuff.
As a result, folks like Richard Perle have lots of access to policy makers, but I do, too—and maybe to a broader bipartisan group of policymakers, because they don't see me as having an ax to grind. That makes it easier for me. I think it's why when the McCain-Feingold bill foundered [Senator] Olympia Snowe [R-Maine] called me up and asked me to work out refinements to the law that just passed muster with the Supreme Court.
Q: What was it in your formative years that pointed you in the direction you've taken?
A: When I came to the University I was really inspired by one of my political science professors, Gene Eidenberg. He'd been a Congressional Fellow, and when he told us about that, I decided that was something I wanted to do too. Which I did, in the 1970s, working with Don Fraser (B.A. '44, J.D. '48) and other people in Congress. It was a great experience.
But even before that, my maternal grandfather, Rubin Latz, was a major figure in the labor movement in Minneapolis and was part of Hubert Humphrey's Kitchen Cabinet that persuaded him to run for mayor and then later for the Senate. My grandfather died before I was born, but I grew up hearing about Humphrey (B.A. '39) and even got to know him a little, so I guess you could say that an interest in politics runs in my family.
Richard Broderick is a St. Paul freelance writer.
 | | | |  | | Political Will | Planning for the emergency succession of U.S. representatives and senators, in the event that large numbers are killed in a terrorist attack.
The first report of the Continuity of Government Commission—aimed at preserving Congress in the event of a catastrophic terrorist attack on the nation’s capitol—recommends a constitutional amendment and makes succession proposals. The U.S. Constitution states that vacant House seats are to be filled by special election. But those elections historically don’t take place until between two and nine months after a seat is vacated—much too long if a large number of House members are killed in an attack. In the Senate, vacant seats are temporarily filled by gubernatorial appointment, as governed by the Seventeenth Amendment.
The commission determined that the only way to quickly fill mass vacancies in the House and Senate while ensuring a balance of power and representation is with a constitutional amendment. The recommended amendment is simple. It would give Congress the power to provide by legislation for the appointment of temporary replacements to fill vacant seats in the House of Representatives after a catastrophic attack and to temporarily fill seats in the House and Senate held by members who have become incapacitated.
The commission recommends that such an amendment adhere to several principles, including that temporary replacements be made immediately and that the appointments be made by governors or selected from a succession list drawn up in advance by the member who holds the seat. In addition, the commission suggests Congress consider additional measures that do not involve a constitutional amendment. These include changing congressional rules so that Congress could effectively reconvene in a new meeting place and without chamber leaders if they are killed or incapacitated; revising the practices on inauguration day, such as keeping several designated members away from the ceremony; and considering ways to confirm noncontroversial cabinet appointments of a new president almost immediately following his or her swearing in to ensure that the line of succession is preserved.
The commission makes one final recommendation—that the states speedily ratify such an amendment, giving them two years to do so instead of the traditional seven.
“It is our hope that such an emergency provision of the Constitution will never be utilized, but it is our best insurance against the chaotic aftermath of an attack,” the report concludes. “It serves as a warning to those who would seek to topple the United States that our institutions are stronger than those who would try to destroy them.”
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