January 27, 1960

' Mr. BmLE. Mr. President, if there is no further morning'- business, I ask that the Chair lay before the Senate the unfinished business.

The PRESIDING OFFICER. Morning business is closed. The Chair lays before the Senate the unfinished business.

The Senate resumed the consideration of the joint resolution (S.J. Res. 39) to amend the Constitution to authorize Governors to fill temporary vacancies in the House of Representatives.

The PRESIDING OFFICER. The question is on the amendment offered by the Senator from Florida [Mr. HaL.:. LAND].

Mr. KEFAUVER. Mr. President, as the resolution which is now before us, Senate Joint Resolution 39, has previously passed the Senate by an overwhelming vote, I hope that we will be able to pass it after full but unprotracted consideration.

In brief, the resolution would empower the Governors of the several States to fill vacancies in the House of Representatives in case of a nuclear or other kind of attack on Washington.

Although the present resolution was introduced only by the Senator from Connecticut [Mr. DoDD] and me, much credit for it is due to the former minority leader and former Senator from California, Senator Knowland. He introduced resolutions on this subject in both the 81st and 82d Congresses, and public hearings were held in March 1952. At that time a number of Members of the Senate, political scientists, political leaders, and other persons interested in Government testified.

Senator Knowland reintroduced his proposal in the 83d Congress and public hearings were held in May 1954. On June 4 ; 1954, the resolution-Senate Joint Resolution 39-as amended, passed the Senate by a vote of 70 to 1. Unfortunately, the House took no action on this Senate-passed resolution.

The history of the legislation in the 84th COngress was very much the same. The proposal was embodied in C Senate Joint Resolution 8. Public hearings were held in March of 1955, and the resolution passed the Senate on May 19, 1955, by a vote of 76 to 3 after a full and thorough debate. I believe I had the privilege of being the sponsor of Senate Joint Resolution 8 in the 84th Congress, together with - other Senators. Again, unfortunately, no action was taken by the House. It is my hope that the present resolution, Senate Joint Resolution 39 of the 86th Congress, can be passed by an overwhelming vote and that the present House of Representatives will give it their prompt attention. The resolution is certainly as urgently needed today as in the past. - In fact, I believe the concensus would be that, if anything, it is more urgently needed than ever.

The purpose and method of operation of the proposed amendment are set forth quite succinctly in the report of the Judiciary Committee. As the report is very brief, I ask unanimous consent that it be printed in the RECORD at this point in my remarks.

There being no objection, the report (No. 561) was ordered to be printed in the RECORD, as follows:

The Committee on the Judiciary, to which was referred the resolution (S.J. Res. 39) to amend the Constitution to authorize Governors to fill temporary vacancies in the House of Representatives, having considered the same, reports favorably thereon, without amendment, and recommends that · the resolution do pass.

PURPOSE

The purpose of the proposed legislation is to amend the Constitution to enable the executive authority of each State to make temporary appointments to fill vacancies in representation in the House of Representat i ves whenever such vacancies exceed half the authorized membership of that body.

STATEMENT

When the Constitution was drafted, the ability to destroy people on a mass basis by use of weapons of war had not been developed. It was, therefore, highly unlikely that the membership of the House of Representatives could be so decimated as to render that body- incapable of exercising its constitutional functions. Indeed, the Founding Fathers had no basis on which to predicate any sutm assumption.

Regrettably, this is not the situation today. The Federal Administrator of Civil Defense has testified:

"Today, with the advent of the atomic bomb and similar devices, we know that vast areas can be devastated almost instantaneously. We also know that no system of defense is likely to be 100 percent effective. In other words, we realize that in any future war it is probable that the enemy would succeed in attacking our civilian communities."

This advance in the technique of destruction has necessitated a reexamination of the ability of our representative Government to function in time of national disaster. A brief review establishes that continuity of the Executive authority is protected by the act of June 25, 1948 (ch. 644, sec. 1, 62 Stat. 672), regulating presidential succession. The judiciary could be reconstituted fairly readily by appointments by the Chief Executive. Any vacancies in the Senate could be temporarily filled by appointments by the Governors of the respective States. But in the House of Representatives, where revenue measures must originate, vacancies must be filled by special elections, and such elections may require a minimum lapse of 60 days.

Thus, as it stands today, the Constitution confers no authority on State Governors to appoint Members to the House of Representatives. This inability to provide for continuity of representation offers no insurmountable difficulty in ordinary times. But in periods of national emergency or disaster, it could well paralyze the functioning of representative government. As the Administrator of Civil Defense has observed:

"It would be difficult to overestimate the importance of Congress continuing to function in time of national emergency. The functions of the Congress become ever more important under such circumstances. The ability of the Congress to act swiftly is essential to the successful defense of the Nation."

If a sufficient number of Representatives were killed by an atomic blast, through germ warfare, or in the course of violent attacks by irresponsible partisans, the House of Representatives would be compelled to function without a majority of it!;! Members. In such an event, any Member might raise a point of order, suggesting the absence of a quorum. Precedents indicate that such a. point of order would not be sustained. But, even so, it is likely that in such times exceedingly important legislation would be adopted and any disfranchisement to a substantial portion of our Nation would represent a distinct loss.

It is true that the House of Representatives might, by amendment of its rules in advance, provide that a quorum should consist of a majority of the remaining Members whenever vacancies occur on a wholes a le scale. Yet this change would not eliminate this danger entirely, for it is certainly possible that in an atomic attack, a sufficient number of Representatives would be incapacitated so that it might well prove incapable of mustering a. quorum of the surviving Members.

This does not necessarily mean chaos in this country, for the Chief Executive would undoubtedly step into the breach and act without legislative sanction in the national interest as he perceived it at that thpe. However, there need be no departure from constitutional representative government if precautionary steps are taken in advance of atomic catastrophe. This legislation represents such a precautionary step. It is not born of hysteria, but evolves from a desire to protect this Nation from undesirable consequences which may be occasioned by indifference to the dangers of the age in which we live.

The subject matter of this resolution has been considered by the Committee on the Judiciary since the 81st Congress (S.J. Res. 145) . In the 82d Congress, public hearings were · held on Senate Joint Resolution 59. In the 83d Congress, public hearings were held on Senate Joint Resolution 39, and this resolution passed the Senate by a vote of 70 to 1 on June 4, 1954. In the 84th Congress, public hearings were held on Senate Joint Resolution 8, and this resolution, as amended, passed the Senate by a vote of 76 to 3 on May 19, 1955. During the 85th Congress, Senate Joint Resolution 157 was introduced, but no action was taken on it. During the present Congress, Senators KEFAUVER and DODD sponsored Senate Joint Resolution 39, which is identical in text with the resolution (S.J. Res. 8) which passed the Senate in the 84th Congress. On March 9, 1959, the Standing Subcommittee on Constitutional Amendments, to which the resolution had been referred, decided that no further hearings were necessary - and voted unanimously to recommend to the Committee on the Judiciary that it report the resolution favorably and without amendment.

The text of the resolution contains no reference to a disaster. Certain problems arise if the power may be invoked only when there is a disaster which causes a given number of vacancies. For instance, the question quickly · arises as to what officer of Govern'­ ment is to proclaim the disaster and how he is to determine which of the vacancies were cau,sed by the disaster. Those problems are not presented here, for under this resolution the power which would be vested in the executive authority of each State is not predicated on any certification or proclamation. It is brought into being by an ascertainable fact, namely, the existence of 219 vacancies in the House of Representatives. In this manner, the amendment avoids the complications inherent in a proposal which requires that the vacancies must be caused by, or be the result of, a disaster. Yet there is no likelihood of abuse of this privilege for the very evidence of so many vacancies in the House of Representatives presupposes a disaster. Another complication which this concept avoids, and which must be reckoned with if the vacancies must be occasioned by a disaster, is the probability that appointments could not be made to fill vacancies created by natural causes either before or after the catastrophe.

The number of vacancies required by the amendment is substantial. The reason for this is apparent: there being no reference to a disaster the committee wanted to be sure that utilization of this authority would be sufficiently restricted, so that it would remain an emergency measure for the preservation and continuity of representative government. The maintenance of a large number of vacancies as a prerequisite to the use of the power constitutes insurance that it will be used only in the event of a disaster. committee desires to stress that these appointments will be temporary appointments. Article I, section 2, of the Constitution requires that a Governor issue writs of election when vacancies occur in the representation of his State in the House · of Representatives. This amendment, by specific reference, emphasizes this requirement, so that, in most cases, an appointee's term will be limited to 60 to 90 days. - An analysis of the resolution will give some idea of its operation. Under the terms of the resolution, the power to appoint Representatives occurs only when the vacancies in the House of Representatives exceeds onehalf of the authorized membership. The present membership of the House being 436, · 219 vacancies would have to exist before this extraordinary power could be invoked. The number of vacancies could exist for several days, but, as appointments are made by the Governors 'pursuant to this amendment, the number of vacancies naturally will diminish. On that date that the vacancies total less . than 219, the time limit on this power begins to run. From that date, by the terms of the amendment, the Governors have 60 days within which to make the temporary appointment or the authority lapses and the office must be filled by election. If, within the 60-day period, additional vacancies arise from any cause, they also may be filled by gubernatorial appointment. Also, · if for some reason the number of vacancies (having dropped below 219) rises again above that figure, the power to appoint again comes . into existence. · These interpretations of the amendment are given by way of explanation, not in anticipation of difficulties in operation. Should unforeseen difficulties arise as the result of this grant of authority, the House of Representatives would act · as final arbiter by reason of its constitutional authority to be the judge of the qualifications of its own Members (art. 1, sec. 5, of the Constitution).

1! CONCLUSION AND RECOMMENDATION

! Naturally · it is the fervent hope of the committee that the authority granted in this resolution need never be used. However, with some knowledge of the tremendous de- - structive power of thermonuclear weapons, it would be the height of folly to leave a constitutional gap of this nature in a representative government such as ours. When whole cities may be obliterated in a split second, the Congress cannot ignore, should it have any inclination to do so, the realities of this danger. The time for action to erase a defect in our Constitution, which could not have been contemplated at the time of its adoption, is at hand. It is pertinent to recall that, as a constitutional amendment, this measure must secure the approval of two-thirds of both Houses of Congress and the ratification by the legislatures of three-fourths of the several States. Since this action is somewhat time consuming the committee believes that this legislation should be approved promptly by the Senate, and the committee so recommends.

Mr. KEFAUVER. In a word, the amendment would plug a loophole in the Constitution-a loophole which could not have been foreseen by the Founding Fathers and which has developed as a serious threat only over the past dozen years or so.

At the time the Constitution was drafted, no one could have foreseen the terrible and destructive power of our modern weapons. I see no necessity whatever to dwell upon either the possibility of a nuclear attack on Washington or the probable results of such an attack. Suffice it to say that such an attack might occur-although we hope and pray it will never occur-and, if it did, it is possible, even probable, _ that a large percentage of the Members of the · House of Representatives, along with a large number of Senators. would be killed immediately or fatally wounded.

Under the Constitution as it now stands, only the House of Representa- ti:ves could not be readily reconstituted after a devastating attack.

Both the Constitution and Federal statutes provide a long line of succession to the office of Chief Executive.

Vacancies in the judicial branch could be quickly filled by appointment by the President.

In the legislative branch, there is no problem with respect to one House, to wit, the Senate. Under the Constitution, as amended by the 17th amendment, the chief executives of the several States are authorized to fill vacancies in the Senate temporarily by appoint- ment pending an election. There is no such authority, however, in connection with vacancies occurring in the House of Representatives. Under article I, section 2, clause 4, of the · Constitution, vacancies can be filled only by election of the people.

It is not my contention that without the adoption of the resolution before us there would · be inevitable paralysis of the Federal Government. It seems certain that the President-or whoever succeeds to that office-would take whatever emergency action appears to be necessary, whether or not either House of Congress were able to function.

Furthermore, preceden.ts indicate that the House can operate With a quorum of its existing Members. and does not require a majority of elected Members. 1 However, after a nuclear attack ti:e Congress would. necessarily be required to pass exceedingly Important legislatiOn, and any wholesale disenfranchisement would be both unfortunate and undemocratic. In such times, the House should not be forced to operate with .a .relative handful of the Members, even 1f its rules permit this.

I might . add, parenthetically, that if per chance an attack occurred on the opening day of Congress, before the new Congress met and before new . rules were adopted, a point of order could be made in the House that a quorum consisted of a majority of all Members chosen. It is likely that under parliamentary rules such a point of order could be sustained. However, if an attack occurred at a later date, and if a truncated House could operate under its rules, some States-in fact, many States-might be wholly unrepresented. Such disenfranchisement would be most undemocratic. In times of emergency, as in other times, or possibly more so than in other times, our Government should remain a government of the people. Membership should be brought back as 'Closely to the authorized number a.s quickly as possible. Under our present , ent Constitution, this would require special or general elections. At present, this would take considerable time. Also, we could expect attacks on many · of our major centers of population; and it might not be possible to hold elections in many States for many months. If we are to have representative government during this period, Governors must have the power of appointment.

There are several technical aspects of the proposal which require some . com- ment.

There is no reference in the resolution to a disaster. The resolution becomes effective when the total number of vacancies in the House exceeds half of the authorized membership. These vacan- cies would not exist except as a result of a disaster. However, it was thought preferable to omit mention of a disaster as both unnecessary and complicating. For example, the question would arise as to what officer is to proclaim the disaster and what vacancies were caused by it. There might be some uncertainty for a time as to which officer was in a position to proclaim such a disaster and the vacancies which occurred.

The maintenance of a large number of vacancies as . a condition to the l.lse of the power constitutes insurance 'that it will be used only in the event of a disaster.

The time during which Governors would have the power to make appoint- ments is very limited: 60 days after any date that the total number of vacancies exceeds half the authorized membership. Any vacancies which are not filled within this 60-day' period must be filled by election in the regular way. Furthermore, any person temporarily appointed to fill such vacancy is permitted to serve only until the people fill the vacancy by election, as provided by section 1. article II, of the constitution-which, of course, is the way vacancies are filled now. ·

I should like to make two or three other points. Without the provisions of the pending resolution, disenfranchisement might last for considerable periods of time in many States. Under the laws of most states, a minimum period of '60 days is required before an election can be held after its proclamation. Furthermore, after a nuclear attack, which we must assume would result in damage to · many other areas · than the District of Columbia, the holding of elections might be extremely difficult, if not impossible, for many months. Even in States where the destruction might not be widespread, the people would be extremely busy and might not wish to attempt an immediate election. Senate Joint Resolution 39 would provide a method for temporary appointments , until such time as the people of the State believed that it was feasible to undertake an election of new representatives.

Even if a majority of the Members chosen, sworn, and living would constitute a quorum, it might be utterly impossible to assembly such a majority either in Washington or any other seat of government if many Members were seriously wounded rather than killed outright. Thus, incapacity of Members, rather than death of Member:s, might be the most serious stumbling block to operation of the House. A method should be provided for quick, though temporary, replacement of Members who have been killed, so that the House can function with as little hindrance and loss of time as possible. . . Mr. President, I should like to point out also that so long as we have a House which can function and choose a Speaker. we have assurance that we will have a President, even under the dire circumstance of an attack in which · the President, Vice President, and all Cabinet · members are killed or incapacitated . . Of course, under the Presidential Succession Act, the President pro tempore of the . Senate succeeds to the office if there is no Speaker. However, there may be no President pro tempore, and the Senate requires a majority of those chosen and sworn for a quorum. Moreover, the . speaker was selected as the second alternate, and, whenever possible, he, rather than the President pro tempore of the Senate, should succeed to the office of President. We should make certain . that there will always be a Speaker of the House; the only way to do this is . to assure that there will be a House capable of meeting and choosing a Speaker without delay.

The primary argument which has . been made against the adoption of this resolution is that it is born out . of fear and panic. To me, this is tantamount to saying that a husband should never purchase life insurance because of fear of frightening his wife, or that a parent should never have his child vaccinated for fear of frightening the child.

This resolution was not born of fear, and it was not born of hysteria. It . . merely embodies a · desire to protect the representative nature of our Government in this second half of the 20th century. · Our Constitution must be adjusted to cope · with the dangers of the age in which we live .

Therefore, Mr. President, I urge the Sen.ate to pass Senate Joint Resolution 39, and I also urge our colleagues in the House of Representatives to give full and prompt consideration to this measure.