HOWARD PHILLIPS on COG

It’s time to sound the tocsin. The Constitution of the United States is often ignored, but, the original words, as amended, remain.

Now, we confront the possibility that changes will be made to the Constitution which will fundamentally alter its underlying principles, its structure, and its restraints.

The neo-conservative American Enterprise Institute and Strobe Talbott’s neo-liberal Brookings Institution, funded by several left-of-center foundations, including Carnegie, Packard, Hewlett, and the John and Catherine MacArthur Foundation, have joined forces to launch a Continuity of Government (COG) Commission whose recommendations, if enacted, could radically transform the Constitutional structure which has endured with changes for more than 200 years.

Aided by professional lobbyist Kenneth Duberstein, and co-chaired by former liberal GOP Senate Whip Alan Simpson and White House counsel (to Jimmy Carter and Bill Clinton) Lloyd Cutler, COG is urging Congress to quickly approve (by two-thirds votes in both Houses) Constitutional amendments which, in COG’s view, would enhance the "legitimacy" of the U.S. Congress as a legislative body following a hostile nuclear or CBW attack which eliminated or incapacitated a "substantial" number of members of the U.S. House of Representatives.

After Congress first crafts and adopts an amendment along the lines advocated by COG’s well connected promoters, three-fourths of the states would then be prodded to ratify the amendment. COG’s goal is to secure Congressional action before September 11, this year.

Former Presidents Gerry Ford and Jimmy Carter are Honorary Co-Chairmen of COG, and the COG Commission includes former Democrat Attorney General Nicholas Katzenbach, former GOP Labor Secretary Lynn Martin, Bill Clinton’s former Secretary of HHS Donna Shalala, Bill Clinton’s former Deputy Attorney General Jamie Gorelick, former House Speakers Democrat Tom Foley and Republican Newt Gingrich, former Clinton White House Chief of Staff Leon Panetta, former GOP Minority Leader Robert Michel, and Kweisi Mfume, President and CEO of the NAACP. Council on Foreign Relations scholar Alton Frye has been active in the commission’s deliberations.

One of the Constitutional amendment drafts put forward by COG stipulates that "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."

Such an amendment would, in effect, give Congress the power to act as a permanently seated Constitutional convention, able to change the law regarding selection of its members whenever it might choose to do so.

Tom Lizardo, Chief of Staff to Congressman Ron Paul, observes that a supposedly minimalist Constitutional amendment could lead to maximum damage to our republic.

"The notion of a ‘broad’ amendment is perhaps worse than the notion of ‘loose construction.’ Broad amendments actually tend to give the color of law to just about all things, whereas broad construction at least gives us a continued argument against the constitutionality of that construction. … The idea that we have a constitutional amendment that would give Congress the right ‘by legislation’ to consider if and when there ought be appointed members of that body is worse even than a constitutional amendment announcing the appoint powers…. That an amendment should pass and that Congress, without further restraints, might define (again, ‘by legislation’) such terms as ‘substantial numbers’ (of vacancies) or ‘times of national emergency’ should give pause to all concerned. Even worse they [COG] are so bold as to suggest that appointment for "incapacitation" might even be granted when no emergency exists."

Lizardo points out that COG completely ignores the fact that "a Congress of 199 elected members and 236 appointed members would be far less legitimate! What if the majority of elected members voted against a measure while the vast majority of appointed officials passed the measure into law? The only thing remotely resembling the ‘will of the people,’ would have been overturned by appointed ‘representatives.’ "

Lizardo says "To suggest that when a small number of members do business it is suspect as to legitimacy is to attack things we do on the House floor every week! … better the legitimacy of the few elected than that of the ‘many appointed!’ "

Another COG proposal would give each governor the authority to fill vacancies (or incapacitations) in his state’s Congressional delegation.

Would California Republicans welcome the prospect of Governor Gray Davis filling 53 vacancies in California’s Congressional delegation? For that matter, would New York Democrats welcome the possibility of GOP Governor George Pataki filling as many as 29 New York Congressional seats?

Under the Seventeenth Amendment, governors may fill vacancies in the Senate pending decisions in special or regular elections. The Seventeenth Amendment is premised on the recognition that the Senate is supposed to represent the states and the House, the people. Never in American history have members of the House been chosen by governors on the basis of death or incapacitation.

COG Co-Chairman Alan Simpson says these gubernatorial appointments would be "temporary", but we ought be skeptical. After all, there are some "temporary" taxes and regulations which have been on the books for decades. Moreover, who defines "incapacitated"?

The COG scheme would let candidates for Congress (and even worse, members following elections) designate their own successors by appointing alternates to fill their slots should they die. Voters could embrace one set of policies and get something entirely different if the views of the alternate disagree with those of the principal.

All of these proposals constitute cures far worse than the problems they purport to address. In the unlikely event that "substantial" numbers of representatives were to be unavailable for service or be incapacitated, there almost certainly would be some left to carry on.

Even with only a handful of members, under present rules a quorum of the living and sworn can be established. And, of course, special elections at the state level can be held expeditiously.

Transferring control of the House from the process of direct popular election would constitute rule by elites, not accountable to the people.

Since ancient times, there have always been those who think they know what’s best for the rest of us, but we must not let them substitute Plato’s republic for the American republic. We must not let them undercut traditional democratic processes in the guise of promoting democracy.

Arguing further against COG arguments is the fact that, through its Article I, Section 4 authority, Congress already may require quick special elections to fill vacancies in the House. The only rationale for any other approach would be the overriding necessity for Congress to act in a matter of days rather than waiting weeks for new members to be elected and assembled.

Such a necessity seems unlikely. The President has the authority to respond to an attack, whether through law enforcement methods or as commander-in-chief. The War Powers Act, whether Constitutional or not, already allows him to take action and wait thirty days before notifying Congress. It took about one month after "September 11^th" before the U.S. military began operations in Afghanistan.

In the case of mass vacancies, appointees or unelected alternates could significantly shift the balance of power in the House. Were Congress to be called on to pass sweeping emergency legislation (as happened in 2001 with the USA Patriot Act), much damage could be done by the time the elected members took their seats.

COG has already generated considerable pressure for early action by Congress. Aided by the political closeness of key COG commission members with the Presidents Bush, 41 and 43, and with top Congressional officials in both incumbent parties, the skids have already been greased. For example, Texas Senator John Cornyn, Chairman of the Constitution Subcommittee of the Senate Judiciary Committee, announced, on cue, that he will hold early hearings.

And Ted Kennedy’s friend from Utah, Judiciary Chairman Orrin Hatch, has enthusiastically endorsed the argument that Constitutional changes are necessary.

Consistent with its commitment to advance a Constitutional agenda, The Conservative Caucus has persuaded Mrs. Phyllis Schlafly of Eagle Forum to chair a new "Coalition to Preserve an Elected Congress (CPEC)". The Coalition, which has already had several discussions among its members, includes Notre Dame Law Professor Emeritus Charles E. Rice, Northwestern Law Professor Stephen Presser, Dr. James McClellan, co-editor of a recent edition of The Federalist Papers and former chief counsel to the U.S. Senate Judiciary Subcommittee on Separation of Powers, California attorney William Shearer, Nevada pro-family activist Janine Hansen, Congressman Ron Paul (R-Tex.), and Dr. Edwin Vieira, Chairman of the National Alliance for Constitutional Money.

It’s bad enough when the Constitution of the United States is ignored. Far worse is the prospect of its fundamental principles being set aside in the wake of an establishment-backed putsch that would amend the Constitution in such a manner as to undermine principles of Federalism, separation of powers, and accountability to the American people.

The fear of terrorism should not be used to scare Americans into surrendering our liberties. It would be a terrible mistake to abandon our representative government in the face of terrorism, and it certainly is not necessary. We should adhere to the Constitution itself, and make use of the rules changes passed by the House in February. It is the fear of calamities – real or imagined – which cause people to surrender their liberties. The calamity passes, but the lost liberty seldom returns.