Is the House ready to navigate unexpected vacancies?

It might be time to amend the Constitution again

All signs suggest that the next few months will be a challenging period for our country. But contested presidential elections aren’t the only trials that test our democratic resilience.

We could sleepwalk into crisis with a few untimely vacancies in the House of Representatives. Our government could be paralyzed for months by a terrorist attack, pandemic, or other mass casualty event. How vulnerable are we to these threats, and how can we prepare?  

The risks of unexpected deaths are real

When a member of the House dies in office, their seat sits vacant until a new member is elected and sworn in. These vacancies average nearly 140 days —  one recent death left thousands of voters without any representation in the House for more than nine months. 

With control of the chamber decided by razor-thin margins, one or two vacancies could be enough to determine which party has a majority and the speakership. Recent disputes over the speaker’s gavel have proven highly disruptive to the business of governing — even when there wasn’t a risk of changing partisan control. 

Worries about members of the House dying are, unfortunately, not hypothetical. Over the past few years, nine sitting representatives have died due to an illness or other health complications. Today, fifteen sitting members are at least 80 years old. Fatal car accidents and plane crashes happen too often. In January 2018, a train carrying dozens of Republican lawmakers crashed into a truck, narrowly averting a derailment and substantial casualties. 

Increasingly, there is also the risk of political violence. Last year, U.S. Capitol Police investigated more than 8,000 threats against members. Though physical attacks have thankfully been uncommon, they have happened. In June 2017, Rep. Steve Scalise (R-LA) was nearly killed by a gunman targeting a Republican baseball practice. But for the heroics of the U.S. Capitol Police, nearly a dozen House Republicans might have died. 

Amongst other incidents, recent attempts to assassinate former president Donald Trump demand these risks be taken seriously. 

And while we can hope these threats never materialize, we need to prepare our democracy for even the worst-case scenarios.

Congress could be significantly diminished during a crisis 

While a small number of vacancies could be destabilizing, a terrorist attack, pandemic, or other mass-casualty event among sitting members could leave Congress paralyzed. Questions of legitimacy would hang over any action taken by a diminished House, especially if there was a geographic or partisan imbalance in the missing representation. 

The Constitution requires that the House have “a Majority” in order to attain “a Quorum to do Business,” leaving an open question as to whether the House could lawfully take any legislative action without 218 members. 

A reduced Congress could be incapable of responding to the range of extraordinary scenarios that might face the nation — leading either to federal inaction or the assertion of broad, unchecked executive power by the President. Indeed, recent experience shows that presidents from both parties have been all too willing to invoke emergency authorities to circumvent Congress. 

We’ve taken some steps toward continuity 

We’ve known about these risks for some time.

Early in the Cold War, the threat of nuclear conflict with the Soviet Union made the prospect of a mass casualty event in Washington D.C. an all-too-real possibility. Because the Constitution requires that all members of the House be elected and special elections take months to plan and administer, the only way to fully address these concerns was a constitutional amendment.

In 1967, we ratified the 25th Amendment to provide for continuity in the executive branch, clarifying the rules for presidential succession and disability, and authorizing Congress to fill a vice presidential vacancy. Continuity measures had likewise been adopted for the Senate in the 17th Amendment, ratified in 1913, which authorized state governments to fill vacant seats in the Senate by temporary appointment. 

A similar approach was proposed for the House: an amendment authorizing state governments to promptly appoint members to temporarily fill vacancies until elections could be held and permanent replacements sworn in. With overwhelming bipartisan support, the Senate three times passed resolutions to adopt such an amendment during the Eisenhower administration — but each time, the House failed to act.  

Decades later, the House’s continued vulnerability was brought back into focus on September 11, 2001. The courageous intervention of civilian passengers brought down Flight 93 in rural Pennsylvania before it could reach its intended destination: the U.S. Capitol, where the House was in session. This near miss prompted renewed attention on the impact of a mass casualty event on the House, as several prominent bipartisan commissions and working groups inside and outside of Congress examined the issues and issued recommendations.

Former Sen. Alan Simpson (R-WY), Rep. Newt Gingrich (R-GA), and other former members urged the adoption of a constitutional amendment allowing for temporary appointment of House members. Bipartisan proposals were introduced in both chambers but again failed to advance. 

In 2005, Congress instead sought to mitigate some of the underlying risks through other means. The House first adopted a “provisional quorum” rule, clarifying that in the event of a catastrophic event, the House would only need a majority of living members to do business, not a majority of the entire body. Congress then passed legislation requiring states to hold a special election within 49 days if there were more than 100 vacancies in the House.

A consensus solution emerges

Nearly two decades later, there is growing recognition that these partial measures are inadequate.

In 2022, former Reagan White House Counsel Arthur Culvahouse Jr., U.S. Circuit Judge James Ho, and a diverse group of former members and other experts convened by the American Enterprise Institute re-examined these issues and concluded that a constitutional amendment was necessary.

They determined that the provisional quorum rule was “unconstitutional and unwise,” by allowing a potentially minuscule number of representatives to legislate in violation of the Article I, Section 5 quorum requirement. 

And, not only does the 49-day requirement for a special election arguably conflict with other federal election laws, but state election officials have explained that it would be incredibly difficult, if not impossible, to competently administer a special election on this timeline. A recent Government Accountability Office report notes that many secretaries of state are unaware of these requirements, and few state laws are even close to compliance. 

After extensive study, a bipartisan group in the House in March 2024 introduced a constitutional amendment allowing states to temporarily appoint representatives upon the death of sitting members, until a special election can be held to elect a permanent replacement. The joint resolution has vocal supporters in both parties: In a hearing on this proposal in mid-September, Rep. Brad Wenstrup (R-OH) reflected on experiencing the risks of political violence firsthand, having administered first aid to his colleague after the 2017 congressional baseball shooting. Rep. William Timmons (R-SC) expressed his view that we should eliminate the dangerous “incentive structure” for politically motivated violence produced by the constitutional status quo. 

The lead sponsor of the proposal, Rep. Derek Kilmer (D-WA), shares this worry: “[S]omeone with bad intentions could flip a [House] majority for four months. And that’s horrifying.” He also admits this is an unpleasant topic for members of Congress to consider: “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.”

And some are, no doubt, skeptical of the prospect of two-thirds of Congress passing and three-fifths of the states ratifying a new amendment.  

Yet, amending the Constitution to address these challenges may be less daunting than it seems. Even in our polarized times, large, bipartisan majorities in Congress routinely adopt measures that advance the public interest, such as improving governance, protecting national security, and increasing protective resources for presidential candidates. 

Indeed, overcoming the threshold skepticism — the folk wisdom that any attempt to amend our Constitution is political fantasy — may be a more daunting challenge than lining up the votes themselves. 

That same view prevailed at the turn of the 20th century, several decades after ratification of the Reconstruction Amendments. The Washington Post captured the general sentiment at the time: “we may properly regard the Constitution as unamendable.” 

In the decades since, that prediction has been disproven twelve times over. Maybe an amendment to ensure continuity of the House will be the thirteenth.