Continuity of Congress: Mass Vacancies

The House of Representatives is particularly vulnerable to the problem of mass vacancies. In the House, vacancies can be filled only by special election (unlike the Senate where governors, under the Constitution's 17th Amendment, may make immediate temporary appointments). If a large number of vacancies were created, they could not be filled until special elections could be held -- they take, on average, four months. Depending on the number of vacancies, the House might not even be able to field a quorum, or it might have to operate with a skeleton crew of members not representative of the country as a whole-even as they make decisions like a declaration of war, suspension of civil liberties, or provisions for emergency disaster relief.

The constitution requires that a majority of each house "shall constitute a quorum to do business." Interpreted literally, Congress could not do business if more than half the seats were vacant. In practice, this requirement is less stringent. Since the Civil War, parliamentarians in the House and Senate have interpreted this provision to mean a majority of the sworn and living members. But even under this more lenient interpretation a quorum might not be met if a significant number of members were incapacitated or unable to answer a quorum call.

There is another possibility to consider - a case in which a quorum is achievable, but with tiny numbers. Take an extreme case: 430 members of the House of Representatives are killed. According to the established precedent, a quorum would be the majority of the sworn and living members - in this case, three members. Even in a less extreme case with 150 members killed, the remaining 285 would operate as the Congress, with large parts of the country left without representation. An additional consideration is that the Speaker of this reduced Congress would be in the presidential line of succession.

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