The Free Congress Commentary - Thwarting A Congressional Power Grab

By Paul Weyrich

Free Congress Foundation's
Notable News Now
June 30, 2003

Do you remember how quickly the amendment to the Constitution which enables
the president to appoint a vice president in the event of a vacancy
virtually snuck up on us?

There really wasn't much understanding in the country of the implications of
that amendment until one day Americans woke up to the fact that they now had
the first non-elected president in their history. When the duly elected
Vice-President Spiro T. Agnew resigned, President Richard Nixon then
appointed House Minority Leader Gerald Ford as president. This choice was
quickly ratified by Congress without much thought, because at that point no
one really expected Nixon to resign. But as Watergate unfolded, Nixon saw
his political support evaporate and he feared impeachment. So he did resign
and there was Gerald Ford, who had only won election victories in a single
Congressional district in Michigan, installed as the non-elected president

He in turn appointed a vice-president who was despised in many political
circles, Nelson Rockefeller. Rockefeller too was quickly ratified by
Congress despite his relative lack of popularity in the nation. Thus for a
little over two years America had both a president and a vice-president who
had never been elected by the people. Lots of people were asking themselves
"how did this happen?" Well, when almost no one was paying attention those
who purport to study such matters proposed the amendment providing for the
president to be able to name a vice-president in the event of a vacancy. It
seemed so innocuous that it sailed through the Congress as well as the
requisite number of states.

I mention this background because I am indebted to Howard Phillips for
calling to our attention the work of the Continuity of Government Commission
(COG) which is funded by a number of left wing foundations such as Carnegie,
Packard, the MacArthur Foundation and officially co-hosted by AEI and the
Brookings Institute.

COG, with the likes of former Republican Senator Alan Simpson of Wyoming,
and Lloyd Cutler, White House counsel for both Jimmy Carter and Bill
Clinton, is pushing constitutional amendments that Phillips correctly
believes "could radically transform the constitutional structure which has
endured with changes for more than 200 years."

COG wants these constitutional amendments passed by September 11, two years
after the warlike attacks on the USA. They want Congress to remember that
had courageous passengers not crashed the hijacked plane in Pennsylvania, it
likely was headed for the Capitol and could well have killed most of the
Members.

One of the COG amendments stipulates, "Congress shall have the power to
regulate by law the filling of vacancies that may occur in the House of
Representatives and Senate in the event that a substantial number of Members
are killed or incapacitated."

Phillips said Congress would, in effect, be a permanently seated
constitutional convention, able to change the law regarding the selection of
its Members whenever it saw fit to do so.

Phillips quotes Tim Lizardo of Rep. Ron Paul's staff, as pointing out the
extremely broad nature of this amendment. It would give Congress the power
to define "substantial number" of vacancies and "times of national
emergency" and even might make these appointments when there is
"incapacitation" when no emergency exists.

Lizardo says that COG ignores the fact that a Congress of 199 elected
Members and 236 appointed Members would be less than legitimate. "What if,"
Lizardo asks, "the majority of elected Members voted against a measure while
the vast majority of appointed officials passed the measure into law?" He
said the only thing then remotely resembling the will of the people would
have been overturned by appointed representatives. .

Another COG proposal is to permit governors to fill all the vacancies in the
House. Right now Governors can appoint Senators when there is a vacancy, but
if there is a vacancy in the House, there has to be a special election.

Phillips wonders how Republicans would feel permitting Gov. Gray Davis to
appoint all California House Members if there were vacancies in all the
districts. Or likewise how Democrats would feel about having Gov. George
Pataki fill all of New York's vacancies.

Simpson claims that these appointments would be temporary. But who defines
temporary? And if Congress can change the law when it sees fit, perhaps
they will make these appointed seats permanent, once the appointed Members
dominate the Congress.

The COG scheme, according to Phillips, would let candidates for Congress
(and even Members after they were elected) designate an alternate should
they die.

Much damage could be done by these appointed Members before elected Members
again could take their seats, if they ever would again. Once Congress passes
something it is almost never repealed.

There is a lot of pressure on Congress to pass this legislation. It may be
well intentioned (although when you look at who is on this Commission I am
not sure) but Congress needs to take a long, hard look at these proposals
before they are put to a vote.

There is no real need for this legislation. Whatever might remain of a
damaged Congress can pass temporary rules with which to operate. And special
elections can be held in swift fashion. It might well be good for a shocked
nation if they had to respond in such elections.

In any case, the brakes need to be applied here. Otherwise we will awake and
ask "how did this happen," only this time the results will be far more
pernicious and the consequences more far-reaching.

Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation.