STATEMENT OF JAMES KIRBY, COUNSEL, SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS, SENATE JUDICIARY COMMITTEE Mr. KIRBY. Mr. Chairman, I am James Kirby, counsel of the Subcommittee on Constitutional Amendments of the Senate Judiciary Committee, representing Senator Estes Kefauver. He had hoped and planned to be here today but a busy schedule has prevented it and he has sent a prepared statement which he would like to submit for the record. Mr. LANE. Thank you very much. I appreciate your apperance here this morning, and you will express to the Senator that we appreciate the statement that he has accorded this committee to consider this very important subject matter. Mr. KIRBY. Thank you very much. (The prepared statement follows:) STATEMENT OF SENATOR ESTES KEFAUVER Mr. Chairman, as a former member of this distinguished body where I was also a member of this particular committee, it is a real pleasure and privilege for me to have this opportunity to express to it my opinions on a subject of vital importance to the House of Representatives and the entire Nation. I know from personal experience that the House of Representatives is properly proud of its historical role as representing the will of the people of the United States. No Member has ever entered this body except by the mandate and popular vote of his constituents. The Founding Fathers were determined that Members of the House should be responsible directly to the people. For this reason, they established a 2-year term of office and provided that vacancies should be filled in all events by special election. However, the framers of the Constitution could not foresee the stark realities of the mid-20th century when weapons of war which can wreak mass destruction almost instantaneously would come into the hands of hostile world powers. Of course, the Senate, too, has since become a body elected by direct popular vote and although Members of the Senate are not required to submit themselves to the elective process so often, I believe that its Members are also keenly conscious of the fact that they are elected by, and are responsible to, the people. In order that constitutional representative government may be continued in all events, I believe it is of vital importance to take precautionary steps so that some disaster could not prevent the legislative branch of our Federal Government from continuing to function in a fully representative capacity. As you know, presidential succession is assured by law. Vacancies in the judicial branch can be filled by Executive appointments. When the Constitution was amended to provide for direct election of Senators, provision was also made for temporary appointments by State Governors to fill vacancies. Thus, if some nuclear disaster fell upon the Capitol, the executive and judicial branches and the Senate could be speedily reconstituted, but special elections would be required to fill vacancies in the House of Representatives. The delay in such a time could paralyze the functioning of the Federal Government. I do not say that it would necessarily be constitutionally impossible for the House of Representatives to function with but a fraction of its Members. I am informed that present parliamentary precedents indicate that the House can operate with a quorum of its living Members. But any disaster which killed one-half or one-third of the Representatives might well disable or isolate so many others that a quorum of the survivors could not be mustered. Also, if this occurred before a new Congress had organized and adopted its rules, a point of order might well be sustained that a quorum consists of a majority of all Members chosen. In any event, it would be important at such a time that the representative character of the House be preserved, and that the delegations of the people of all the States be substantially intact for the urgent legislative action which would be taken. The President should have that degree of support and national unity which only a fully constituted Congress could give him. For this reason, I have favored for a number of years an amendment to the Constitution which would authorize the Governors of the various States to make temporary appointments to the House of Representatives whenever some disaster substantially reduced its membership. I believe such appointments should be as temporary as conditions will permit and that the appointees should serve only until successors can be elected. However, in normal times, special elections require from 60 to 90 days, and in times of national emergency and disaster it could well be much longer before elections could properly be held. Former Senator William Knowland of California was one of the earliest to become concerned about the continuity of constitutional representative government in the event of nuclear attack. In September of 1949, it was learned that the Soviet Union had exploded an atomic bomb. In the 81st Congress, Senator Knowland then introduced Senate Joint Resolution 145 on January 18, 1950. It set the number of vacancies which would authorize temporary appointments at one-half of the authorized membership of the House and set forth a detailed provision for a proclamation to inform the State Governors that their appointive power had arisen. In the 82d Congress, Senator Knowland introduced Senate Joint Resolution 59, which reduced the operative number of vacancies to 145 and also contained notification provisions. The Senate hearings held in the 81st and 82d Congresses indicate that it was thought that a majority of the authorized membership of the House was necessary for a quorum, and this may partially explain why Senator Knowland changed the operative number of vacancies from one-half to one-third in his proposal. It was developed in the the course of hearings in the 84th Congress that parliamentary precedents required for a quorum only a majority of the Members of the House who are duly chosen, sworn, and living. Neither figure, therefore, has any particular constitutional or parliamentary significance. In my opinion, the operative number of vacancies should be determined by the point at which the representative character and legislative efficiency of the House might become so impaired as to require temporary appointments. In the 83d Congress, Senator Knowland introduced Senate Joint Resolution 39, which again specified one-third and contained proclamation provisions. This resolution was approved by the Senate by a vote of 70 to 1 on June 4, 1954. In the 84th Congress, as chairman of the Senate Subcommittee on Constitutional Amendments, I became interested in this subject and introduced Senate Joint Resolution 8, which set the number of vacancies at one-half and did not contain a proclamation provision. I felt then and feel now that the operation of the authority granted by such an amendment should not depend upon the following of some detailed notification procedure. There are many pitfalls in attempting to deal constitutionally with all the unforseeable difficulties which might prevent a specified mode of notification from being carried out. resolution was approved by the Senate by a vote of 76 to 3 on May 19, 1955. In the 85th Congress, I introduced Senate Joint Resolution 157 along the same lines. In the 86th Congress, I introduced Senate Joint Resolution 39 and it was approved by the Senate by a vote of 70 to 18 despite the fact that two additional and separate articles of amendment were added to it on the Senate floor. This From this background, I believe it is safe to say that if the House of Representatives approves a constitutional amendment on this subject, the chances are very good that the Senate will also approve it. Early in this Congress, I introduced Senate Joint Resolution 18, which set the operative number of vacancies at one-half. From discussion in the Subcommittee on Constitutional Amendments, I have concluded that one-third is a more suitable basis than one-half, although any choice is necessarily somewhat arbitrary. In considering the possible effects of the type of disaster which we should guard against, I think it is most likely that any disaster which killed one-third of the membership of the House would incapacitate so many of the survivors that the House would probably be left with substantially less than one-half of its membership available for the transaction of business. A strong argument can be made that the operative number of vacancies should be even less. Indeed, I doubt if the average citizen is conscious of any valid reason why individual vacanices in the House and Senate are treated differently by the Constitution with respect to temporary appointments. Senator Kenneth B. Keating, also a former Member of the House of Representatives, and I have, therefore, introduced Senate Joint Resolution 123, which specifies one-third. It also authorizes Congress to enforce the article by legişlation, leaving the way open to provide statutory procedures for determining when the requisite number of vacancies exist and notifying the State Chief Executives of this fact. Of course, the House will continue to be the constitutional judge of the qualifications of its own Members, in case unforeseen difficulties arise in the exercise of this grant of authority. I know that the Department of Justice and the Office of Civil and Defense Mobilization are very much in favor of some amendments along these lines, and I understand that representatives of these agencies will appear personally at these hearings. At a time when we are preparing ourselves militarily for the possibility of World War III and we are calling upon our citizens for personal sacrifice to the point of urging construction of personal fallout shelters, I feel very strongly that it is the height of folly to leave a constitutional gap which might prevent the continuation of orderly representative government. The time is now singularly appropriate for approval of an amendment of this sort. It would demonstrate to Mr. Khrushchev that we are preparing governmentally, as well as militarily, if the enemies of freedom choose to precipitate World War III. Mr. Chairman, I commend you and your committee for going into this subject at this time. I am not wedded to any particular form which the amendment should take, but I believe strongly that some amendment along these lines should be approved promptly by the Congress. I know that you will give this problem full and careful consideration and I am confident that the result will be a solution which serves the interests of all the American people, protects the integrity of this great legislative body, and insures the continuation of democratic government. Thank you for your courtesy and consideration. Mr. LANE. Is the Congressman from Louisiana, Representative T. A. Thompson, the sponsor of one of the other joint resolutions, House Joint Resolution 74, present or a representative from his office? (No response.) (Representative T. A. Thompson sent the following letter for inclusion in the record :) HOUSE OF REPRESENTATIVES, Washington, D.C., September 29, 1961. Hon. EMANUEL CELLER, DEAR MR. CHAIRMAN: I believe my resolution, House Joint Resolution 74, is evidence of my concern for our national welfare in the event the United States is imperiled by acts of violence and aggression. The resolution, as you are aware, proposes an amendment to the Constitution of the United States designed to enable the Congress, in aid of the common defense, to function effectively in time of emergency or disaster by granting State Governors authority to fill existing vacancies in the House of Representatives should the number become too great. In these times of tense uncertainties with the ever-increasing threat of a nuclear war confronting us, it is important to ourselves and to our posterity that this legislation become statutory law. In a national emergency the general continuity of Government would no doubt determine the outcome of our fate for the good or evil side. Therefore, while it is certainly to be hoped that the necessity for utilizing this law shall never be occasioned, I feel it is nevertheless imperative that it be enacted. In the interest of safeguarding the general public and assuring ourselves of reasonable governmental functioning powers, may I urge prompt consideration be given this resolution, With kindest personal regards and best wishes, I am, Sincerely yours, (Signed) T. A. THOMPSON, Member of Congress. And the next is Congressman Charles E. Chamberlain of Michigan, who is also a sponsor of a bill, House Joint Resolution 508. Mr. SHATTUCK. Mr. Chairman, Mr. Chamberlain's office called this morning and said he was unavoidably scheduled to attend another meeting. He will file his statement later on. Mr. LANE. Thank you very much. (The statement referred to is as follows:) STATEMENT BY REPRESENTATIVE CHARLES E. CHAMBERLAIN Mr. Chairman, I wish to thank the committee for this opportunity to appear in support of House Joint Resolution 508. Although I think that the purpose of and the very real need for this constitutional amendment are self-evident and require no elaborate dissertation to prove their validity, I am pleased to present to the committee the reasons which have influenced my thinking and convinced me of its merit. I make no claims with respect to the authorship of this proposal to provide for the effective operation of Congress in the event of a national emergency or disaster, but I wholeheartedly favor it because I have been concerned, for several years, about the future of representative government during a period of hostilities of the devastating proportions that can be expected should the cold war become a hot war. Mr. Chairman, I think we have all heard talk of the extensive plans to ensure the uninterrupted functioning of the essential agencies of the executive branch in the event of a nuclear attack on Washington *** and this is, certainly, as it should be. But the question remains as to what would happen to the legislative branch under the same situation. As things now stand, should there be such an attack in which a large segment of the membership of the House of Representatives was lost, Congress would be unable to exercise all its constitutional powers and prerogatives until elections could be held. In the meantime we would have, for all intents and purposes, government by the executive branch. In adidtion, should Congress not be able to function, the morale of the Nation would be dealt a serious psychological shock which would only accentuate the chaos and confusion that would follow such an attack. Clearly, while we are acting to beef up our defenses, both at home and abroad, and while we are finally beginning to pay more attention to civil defense, this is a most opportune time to focus attention on this problem of how our system of government would function in such an eventuality. Clearly, it is a time to anticipate every contingency and to act accordingly. House Joint Resolution 508 provides for an amendment to article 1, section 2, clause 4, of the Constitution, which reads, "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." The purpose of the amendment is to make it possible for the Governor of each State to fill immediately by appointment any vacancies resulting from an emergency or disaster. This would be effected when the Speaker, or in his stead some other duly empowered officer of the House, had certified to the President that over 145 vacancies existed in the membership, and when the President had then issued a proclamation permitting the Governor of each State affected to appoint new Members within 90 days. All other vacancies after this 90-day period would be filled in accordance with the customary procedures under clause 4 as it now reads. I believe that is essential that we safeguard our form of government as well as our populations from the disorder and devastation that such an attack would precipitate. Consider if you will the possible effect if the legislative system of the leading Nation of the free world were suddenly paralyzed? In such a circumstance the very essence of representative government * ✶ ✶ so often unjustly attacked as being inefficient and incapable of functioning effectively in times of crisis *** is challenged. In past years the failure of such institutions to meet the demands of the times has had a marked impact. The inability of representative government in Germany in the 1920's and 1930's to prevent the rise of nazism should indicate to us the need for sustaining strong representative institutions. Our system of government successfully met the Nazi challenge, but today it is threatened the world over by communism *** which attempts to justify itself under the misleadingly innocent name of democratic centralism, which makes a mockery of true representative principles. Certainly we cannot permit to exist any foreseeable situation where our response to this threat might falter. In addition, many of the newer nations, whose peoples are not sufficiently prepared to maintain representative institutions, have resorted to various types of authoritarian government for the espoused purpose of preparing the people for democracy. The example we set in this country might well influence, that is, to encourage or discourage, the final adoption of representative government in these new nations. As the leading legislative body of the free world, we cannot 75586-61-3 afford to overlook any contingency that might possibly reflect upon our constitutional system that has served us so well and brought us to our position of leadership in the free world. I trust that the committee will not see any partisan feelings motivating my concern in this area out of fear of powers that the present administration would assume in the event of such a national catastrophe. My feelings with respect to this problem have no relationship to the party affiliation of the President of the United States. As I have just said, my concern is more with the reputation and preservation of representative government. But we should also keep in mind that the period in American history since the Second World War has been characterized by the dramatic ascendency of the supremacy of the executive branch in our system of separated powers. And there are many students of politics and history who view this tendency with considerable apprehension. Whatever the validity of this viewpoint, it is irrefutable that we must keep our representative institutions in constant repair, and never fail, tacitly or otherwise, to defend them against all dangers, imminent and potential. Mr. Chairman, those of us whose job it is to make the representative system work, too infrequently take time to consider the longer view and to speculate upon the probable future of our political institutions. Whatever the nature of future developments and the possible impact that such an attack might have on them, I do not believe that there can be any doubt as to the practical wisdom of this proposal. It is my understanding that the Judiciary Committee of the other Chamber is prepared to consider a similar proposal. This is encouraging. However, it seems to me that too much time has already been gambled and that we should act on this proposal immediately * ** particularly in view of the usually time-consuming ratification process required. May I suggest to the committee that we never know how late the hour is *** how close we may be to another Pearl Harbor. Naturally we hope that it will be prevented, but we should always be prepared. Certainly as we meet our responsibilities of national security we must not overlook the Congress itself and our responsibility to insure the continuance of representative government. Mr. LANE. Then if our colleagues are not present, I imagine that they will submit their statements or they will appear later on at this hearing. So we have as our next witness the Office of Civil and Defense Mobilization Director, the Honorable Frank B. Ellis, and also Charles Kendall, the attorney, General Counsel, and Mr. Robert Phillips, Director of Continuity of Government. If those witnesses will come forward, may we have their testimony please. Mr. Ellis, you are our next witness, with Mr. Kendall, your General Counsel, and Mr. Phillips, Director of Continuity of Government. STATEMENT OF HON. FRANK B. ELLIS, DIRECTOR, OFFICE OF CIVIL AND DEFENSE MOBILIZATION; ACCOMPANIED BY CHARLES KENDALL, ESQ., GENERAL COUNSEL, AND ROBERT PHILLIPS, DIRECTOR OF CONTINUITY OF GOVERNMENT Mr. ELLIS. Yes, sir, they are both here. Mr. LANE. You have a prepared statement? Mr. ELLIS. Yes, sir, and I think the statement has been handed to the members of the committee. Shall we proceed, sir? Mr. LANE. You may proceed now, please. Mr. ELLIS. Mr. Chairman and members of the committee, I sincerely appreciate the invitation to testify this morning on the four pending House resolutions which deal with continuity of the House of Repre sentatives. |