Given that these are people who are disproportionately older, who reflexively shake hands and who work in close proximity to one another, a coming crisis of government is not implausible. But don’t say they weren’t warned.
There are no provisions, constitutionally, legally or within congressional rules, to enable Congress to meet remotely. This is true even though these challenges are not new; we faced them in the aftermath of 9/11 and with the subsequent anthrax threat that could have left a majority of members of the House and Senate incapacitated. Yet Congress failed to seriously address these vulnerabilities.
It’s not for want of trying. We first worked with then-Rep. Brian Baird (D-Wash.), and then with Sen. John Cornyn (R-Tex.), then-chairman of the Senate Judiciary subcommittee on the Constitution, in an attempt to focus Congress, the presidency and the Supreme Court on the lack of road maps to make sure our institutions can function in the case of an attack, natural disaster or, as now, health crisis.
We started with columns and op-eds. We testified before Congress. We created a Continuity of Government Commission, co-chaired by Lloyd Cutler, a former two-time White House counsel, and former senator Alan Simpson (R-Wyo.). We held hearings and issued three reports, on Congress, presidential succession and the judiciary.
The results were, to put it mildly, disappointing. The indifference we first encountered from congressional leaders was soon joined by intense opposition from powerful Republicans in the House. Some responded with simple obduracy. Others passionately believed that the House, which had never had a member serve who was not first elected, should not allow under any circumstances for emergency interim appointments for those killed or incapacitated by a mass attack. They were not moved by the argument that a House with temporary appointments during a catastrophe was better than no House at all.
In the Senate, we were able to secure support from Cornyn and then-Sen. Russ Feingold (D-Wis.), but the constitutional amendment they passed in subcommittee died in the full Judiciary Committee. Other than making provisions for an alternative location if the Capitol were uninhabitable, nothing of significance was done.
At the same time, Vice President Dick Cheney, the point man in the executive branch, rejected the idea of reconsidering the obsolete and flawed Presidential Succession Act of 1947, and our overture to Chief Justice John G. Roberts Jr. to think about a succession plan for the Supreme Court was met with a curt “No.”
Every year for the past 19, we have tried to raise these issues again, and neither party’s leadership has been interested. A perennial excuse: “We have too many other priorities.” Another reason, no doubt, is the superstition and unwillingness that people must overcome when confronting delicate and potentially explosive matters such as writing a will.
We have always thought that it would take another major crisis to force Congress and others in government to reconsider and act. We now have that crisis. The first and most significant step Congress must take — and quickly before things escalate — is to enact measures enabling it to meet remotely.
Congress can create a temporary and renewable capacity to have virtual meetings in which members can debate and vote in a way that’s accessible for the public. The same should be true of committees. A “present” vote in a quorum call should be allowed in the rules to count if done remotely. All members and staff need to be equipped with the hardware and software to make this possible with the appropriate security measures. And action to ensure continuity of democracy, by mandating vote-by-mail and expanded early voting if the pandemic interferes with the election, is also important.
We hope this jolt will finally trigger a desire among lawmakers — and also the chief justice — to grapple with potential threats to our fundamental institutions and elections. Going without a careful plan should be unacceptable. Without this set of actions, we face the possibility of having no Congress, no appropriations authority and no oversight at an urgent moment — leaving an executive to act by fiat. Whether that executive is Donald Trump or any other president, that is not healthy for our system and our society.