Continuity of Congress: Incapacitation

Under normal circumstances, neither house of Congress attempts to determine the capacity of individual members. Many members have stayed in their elected positions for months, or longer, while comatose or clearly unable to perform their normal duties. There has been only one recent case of a seat declared vacant while held by a living member, that of Gladys Noon Spellman (D-MD). But the Spellman case is extraordinary. Spellman fell into a deep and irreversible coma on October 21, 1980, while campaigning for re-election, and she was voted in by the people of her district in Maryland. On February 23, 1981, the House passed H. Res. 80 declaring the seat vacant because of her "absence and continuing incapacity."

A somewhat parallel case occurred in 1972 with House Majority Leader Hale Boggs (D-LA) and congressman Nick Begich (D-AK). Both were lost in a plane crash. Because the plane crash occurred close to the next election, their names remained on the ballot, and certificates of election were issued showing their electoral victory. While the bodies were never found, the seats were declared vacant after an Alaska court officially determined that they were presumed dead.

On the other side, there have been many cases of members of Congress who have not been able to show up to vote or perform their duties but who have remained in office. Senator Carter Glass in the 1940s is one example. As is Senator Karl Mundt, whose committee slots were declared vacant by the Republican Conference, but who remained formally in his seat until the end of his term in 1972 despite total incapacity for a considerable period of time. The practice has been that an incapacitated member is not removed unless that person stands for re-election, wins, and cannot be seated for a new term because of the incapacity.

Ignoring incapacity is understandable for a Congress operating during normal times. As with the vacancy provision, Congress would not cease functioning if a few members are not able to perform their duties. There is also the danger of abuse with an incapacity provision, with congressional leaders or governors tempted by political or other reasons to try and replace members by declaring them incapacitated.

But in the case of a catastrophic event, the problem of incapacity takes on a new face. The grim realities of the War on Terrorism and the nature of possible chemical or biological attacks on Washington and Congress makes it more likely that Congress will have massive incapacitation, rather than massive death. Even if no member died in an attack, the serious injury of 218 members would make the fulfillment of the House quorum requirement impossible.

The above materials draw heavily on Norman Ornstein's testimony before the House Judiciary subcommittee on the Constitution on February 28, 2002.