America has not planned for this contingency.
On Sunday, Sen. Rand Paul (R-KY) announced that he has tested positive for Covid-19, the coronavirus disease, and that he is being quarantined. A day later, Sen. Amy Klobuchar (D-MN) announced that her husband, John Bessler, also tested positive. At least two other senators, Utah Republicans Mitt Romney and Mike Lee, are self-quarantining because they were recently in close proximity to Paul. And at least two members of the House, Reps. Mario Diaz-Balart (R-FL) and Ben McAdams (D-UT), have tested positive for the disease.
For the moment, this small number of infections is manageable. But what happens if so many lawmakers are locked into a quarantine that they are unable to cast votes? What if a critical mass of lawmakers become so incapacitated that the House or the Senate lacks the quorum it needs to conduct business? What if members are so terrified of becoming sick that they refuse to convene in Washington (as a general rule, members of Congress must be in the House or Senate chamber to vote)? What if many members of the House become unable to work, leaving vacant seats that can only be filled by a special election?
These are not new questions. Indeed, in the aftermath of the 9/11 attacks, the American Enterprise Institute (AEI) and the Brookings Institution think tanks convened a Continuity of Government Commission to study how the United States could be better prepared for a situation where many key government officials are either killed or incapacitated. Its first report, from May 2003, offers a blueprint that Congress could follow to ensure that the legislative branch continues to function even amid a pandemic.
Yet, while this report offers a well-considered list of potential reforms, its primary proposal is to allow vacant House seats and the seats of incapacitated members to be temporarily filled by appointments. This proposal could prevent the coronavirus from emptying out Congress, but it also requires a constitutional amendment. Such amendments are difficult to achieve even in ordinary circumstances and would likely be impossible in the midst of a crisis. No amendment can be ratified without the approval of three-quarters of the states. And state legislatures are likely to struggle to act for the same reasons that Congress could become incapacitated.
“We have to be concerned with triage right now,” says AEI’s Norm Ornstein, one of the primary movers behind the Continuity of Government Commission, of the need to act immediately.
It’s almost certainly too late to put in place the best possible reforms. Nevertheless, there are some reforms that Congress could enact now — such as remote voting and universal vote-by-mail — that could minimize the risk that Congress will be unable to perform essential functions should the worst happen and coronavirus keeps it from convening in Washington.
The constitutional process is not prepared for coronavirus
Broadly speaking, there are two different ways the coronavirus could prevent Congress from functioning. It could potentially kill or incapacitate enough members of Congress to prevent Congress from operating at all — although that outcome is very unlikely. It’s more likely to prevent Congress from convening in Washington, as individuals members are quarantined or engage in social distancing.
A first point of failure would occur in the event of deaths among lawmakers’ ranks. The 17th Amendment permits the state governors to appoint temporary senators to fill vacancies in the US Senate, at least until an election can be held to fill the seat. Although governors may only do so if they’ve been given that power by their state legislature, the overwhelming majority of states permit gubernatorial appointments to the Senate.
In the House, however, the picture is different. The Constitution provides that “when vacancies happen in the Representation from any state” in the House of Representatives, then “the executive authority thereof shall issue writs of election to fill such vacancies.” There are no gubernatorial appointments to House vacancies, only special elections.
In normal times, there is a sense to this dichotomy. Senators, like governors, are elected by their entire state. So a state governor has some legitimacy to speak on behalf of the state as a whole if someone needs to be appointed to a vacant Senate seat. House districts, by contrast, typically comprise only a subset of the state as a whole — and, indeed, individual House districts can have very different political leanings from the state they are located within. There are Republican House members from California, and Democrats from Texas.
But in these very unusual times, the absence of a constitutional provision allowing vacant House seats to be filled quickly means that many parts of the country could go without representation if their House member dies.
A second point of failure arises if a lawmaker is still alive but incapacitated or otherwise prevented from doing their job. In that circumstance, the lawmaker would continue to occupy their seat, even though they would be unable to cast votes or perform their other official duties. Our Constitution has no mechanism whatsoever to temporarily fill a seat that is held by an incapacitated member. Congress could, theoretically, expel an incapacitated member by a two-thirds vote, but that would be an extraordinary act that would permanently remove that member from office.
Historically, when a member of Congress becomes incapacitated, that member’s constituents simply go without representation until the next election. From 1942 until his death in 1946, for example, Sen. Carter Glass (D-VA) remained in office despite the fact that he was too ill to attend Senate meetings. He even held onto his roles as Senate appropriations chair and as president pro tempore of the Senate for most of this period.
Similarly, after Sen. Karl Mundt (R-SD) had a severe stroke in 1969 that left him unable to perform his duties, he was stripped of his committee slots but remained a senator until his term expired in 1972.
According to the Continuity of Government Commission, the only historical example of a member of Congress being removed due to incapacity is Rep. Gladys Noon Spellman (D-MD), who fell into a coma shortly before she was reelected in 1980. Though the House eventually passed a resolution declaring her seat vacant due to “absence and continuing incapacity,” Spellman was unusual in that her incapacity began before her term — so she was unable to be formally sworn in as a member of the House.
There is no precedent for a member being removed due to incapacity after they have taken the oath of office.
The 2003 Commission report warns of nightmare scenarios where a terrorist attack kills or incapacitates all but a handful of the members of one house, then speculates about whether a nine-member House could continue to lawfully conduct business. Realistically, these nightmare scenarios are unlikely to result from coronavirus, which has an estimated mortality rate of 1 to 3.4 percent.
But Covid-19 could incapacitate enough members of Congress to raise a cloud of illegitimacy over the legislative process. And it could make it exceedingly difficult for the Senate to function at all.
Imagine, for example, that through sheer blind luck a large number of Democratic House members are incapacitated while Republicans remain largely unscathed. That could potentially enable a coup, where Republicans replace House Speaker Nancy Pelosi with one of their own and push through legislation that could never pass a Democratic House.
In the Senate, meanwhile, current rules require a bloc of senators seeking to break a filibuster to produce 60 affirmative votes. As Ornstein put it to me, “it’s the majority that’s screwed” in the Senate. If the majority does not have 60 votes to proceed to legislation, obstructionist senators merely need only sit on their hands.
Finding 60 votes can be a difficult task in a 100-person Senate. It would be an even more difficult task in an 80-person Senate if many members are incapacitated or otherwise unable to vote.
So what can be done?
Though a constitutional amendment is almost certainly off the table — at least in the short term — there are still steps Congress can take right now to preserve its ability to function.
One is a proposal by Sens. Dick Durbin (D-IL) and Rob Portman (R-OH), which would allow senators to cast votes remotely. Under their proposal, the two party leaders could jointly authorize remote voting for a period of 30 days, and then the full Senate could vote to extend this period. A similar rules change could be enacted in the House.
Such proposals would enable lawmakers to continue to cast votes even as they remain at home — or potentially even if they are quarantined. But they will only be enacted if the Senate’s Republican leadership agrees to bring it up for a vote.
Ornstein also emphasized to me that Congress should take advantage of technology such as the teleconferencing software Zoom to conduct “remote sessions” where the public can still see legislation being deliberated and oversight hearings being held. Congress does not want “to be in a situation where you can’t do any oversight,” Ornstein warned me, especially if it is about to give the Trump administration the power to distribute hundreds of billions of dollars in stimulus funds.
Congress should also enact legislation, such as a bill proposed by Sens. Klobuchar and Ron Wyden (D-OR), which would make it easier for Americans to vote by mail. That wouldn’t just help secure the November election. It would also ensure that voters can participate in any special elections that are called to fill House vacancies.
The Senate, meanwhile, could amend its filibuster rules to place the burden of maintaining a filibuster on the senators behind that filibuster. Thus, instead of requiring the majority to produce 60 affirmative votes to end a filibuster, the Senate could require the minority to produce 41 negative votes to maintain a filibuster.
Finally, Congress may want to consider enacting a continuing resolution or other appropriations legislation to ensure that the government remains funded — and that the debt ceiling is not breached — for as long as the coronavirus crisis is likely to last. That way, if the worst happens and Congress truly becomes unable to function, the government will continue to operate.
Many of these reforms will need to be enacted under suboptimal circumstances. Members may struggle with the new technology they will need to use to conduct deliberations or to cast votes. And Congress will need to ensure that its remote voting system is secure from hackers, even while many of the developers who would produce such a system are stuck working from home.
But the consequences of doing nothing are potentially much worse. As the Commission report warned, “in the event of a disaster that debilitated Congress, the vacuum could be filled by unilateral executive action — perhaps a benign form of martial law. The country might get by, but at a terrible cost to our democratic institutions.”
Unless you are comfortable with giving that kind of power to Donald Trump, the only alternative is to ensure that Congress can function during a pandemic.
Author: Ian Millhiser
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