The Washington PostDemocracy Dies in Darkness

Opinion Members of Congress are facing a potential crisis of government. They were warned.

The U.S. Capitol Rotunda sits empty on March 16. Congress has shut the Capitol and all Senate and House office buildings to the public until April in reaction to the spread of the coronavirus outbreak. (Patrick Semansky/AP)

Norman J. Ornstein is a resident scholar at the American Enterprise Institute. Thomas E. Mann is a senior fellow at the Brookings Institution.

Two members of Congress have already tested positive for covid-19. Imagine if 250 members of the House or 55 members of the Senate contracted the disease and were hospitalized or quarantined. Or if members were to return home but were unable to make it back to the Capitol because of travel restrictions. Neither chamber would be able to meet the Constitution’s requirement for a quorum to do official business. The legislative branch of our government would cease to function at a critical moment.

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.

More coverage of the coronavirus pandemic

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.

Sen. Mitt Romney (R-Utah) told reporters March 22 he had lunched with Sen. Rand Paul (R-Ky.) just two days before Paul was diagnosed with the novel coronavirus. (Video: C-SPAN)

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.

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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.

Read more:

Congress reviewed its doomsday plans after 9/11. It never envisioned a threat like the coronavirus.

Daniel Hemel: Congress can’t meet remotely. The coronavirus might mean it has to.

Danielle Allen: America needs to be on a war footing

The Post’s View: The Trump administration is urging people to work from home. What about the federal government?

Norman J. Ornstein: Our elections are wide-open for a constitutional crisis

Coronavirus: What you need to know

Where do things stand? See the latest covid numbers in the U.S. and across the world. In the U.S., pandemic trends have shifted and now White people are more likely to die from covid than Black people.

The state of public health: Conservative and libertarian forces have defanged much of the nation’s public health system through legislation and litigation as the world staggers into the fourth year of covid.

Grief and the pandemic: A Washington Post reporter covered the coronavirus — and then endured the death of her mother from covid-19. She offers a window into grief and resilience.

Would we shut down again? What will the United States do the next time a deadly virus comes knocking on the door?

Vaccines: The CDC recommends that everyone age 5 and older get an updated covid booster shot. New federal data shows adults who received the updated shots cut their risk of being hospitalized with covid-19 by 50 percent. Here’s guidance on when you should get the omicron booster and how vaccine efficacy could be affected by your prior infections.

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