Congress’s disaster recovery plan needs a constitutional fix  

In 37 states, governors temporarily fill vacancies, followed by a special election during the next regular election to select a permanent replacement. In the other 13 states, a special election must be held within a set period to fill the vacancy, with eight states permitting interim gubernatorial appointments. 

House vacancies? Well, that’s a little more complicated. 

The Constitution mandates that House vacancies be filled by special elections. When or how quickly these elections take place is up to the state. That means dozens of unique procedures to fill vacancies. However, according to secretaries of State who testified in front of the Select Committee on the Modernization of Congress, where I served as chair, those special elections generally take about three or four months. 

So, why might that be a problem?  

Here’s where this discussion gets uncomfortable. 

Consider an extremist who aims to change the balance of power in Congress by targeting members of one political party. It’s not an imaginary idea — we saw it happen during a practice for the annual Congressional Baseball Game. 

Indeed, the Washington Post reported “The number of threats to members of Congress and the U.S. Capitol increased by about 500 last year, to 8,008, involving both ‘concerning statements’ and ‘direct threats.’” Should something horrific like that happen in this era of slim majorities, a congressional majority could flip — for three to four months. 

Or consider the State of the Union address. Every year, as lawmakers enter the House Chamber, it can feel like a real-life episode of “Designated Survivor.” If the unimaginable became reality and a mass casualty event occurred, what would happen? 

Initially, Congress would consist only of the members who skipped the State of the Union. Imagine that for a second. 

But then, how would Congress be repopulated? 

The short answer: slowly. 

After 9/11, Congress passed new rules stating that, following a mass casualty event, special elections would need to be held within 49 days.  

But there are two problems with that. First, according to the testimony we heard in the Modernization Committee, many, if not most, states won’t be able to meet that deadline. And second, 49 days is a long time to have mass vacancies when you’re in the middle of a national crisis. 

It’s a chilling thought that carries grave implications for the foundations of our democracy. 

So, why hasn’t Congress done anything about this? 

No one wants to imagine a future that doesn’t involve them. Moreover, it’s easy for people to ignore the consequences of inaction when the chances of disaster seem unlikely.  

There have been exceptions. During his 12 years as a representative, former Rep. Brian Baird (D-Wash.) repeatedly proposed amending the Constitution to address this. He chalked up strong opposition to “bipartisan delusions of immortality and serious lack of responsibility.”  

So, what now? 

Today, with no delusions of immortality, a bipartisan group of Democrats and Republicans and I introduced a constitutional amendment to require newly elected representatives to provide a list of at least five designees qualified to serve in their place should they pass away during their term. 

Under our proposal, if a representative passes away, a governor must select a replacement from this list within 10 days, and the Speaker of the House is to immediately fill the vacancy with the chosen individual. The designee would serve as a representative only temporarily until a new member is elected in a special election. 

Importantly, this solves two big concerns. 

For one, it would ensure the continuity of the legislative branch during times of crisis. Second, because representatives would almost assuredly submit names from their own party, it would eliminate the incentive for political violence. 

The risks may be low. But if something catastrophic were to happen, the impacts would be immense. If Congress fails to enact a legitimate continuity plan, the American people will be left wondering why — in the world’s leading democracy — there was no plan to protect our most sacred democratic institution.

Rep. Derek Kilmer (D-Wash.) is the U.S. representative for Washington’s 6th congressional district.