Death wish: if terrorists attack Congress, America could have no legislative branch. House Republicans are fine with that.

• Author: Klein, Avi

In 1998, according to the 9/11 Commission report, Osama bin Laden, Khalid Sheik Mohammed, and Mohammed Atef met near Kandahar, Afghanistan, to draw up a list of targets for the attacks that would ultimately take place on September 11, 2001. There were differences of opinion, naturally: Bin Laden wanted to destroy the White House and the Pentagon, while Sheik Mohammed preferred to go after the World Trade Center. But all three men agreed on one target: the Capitol building.

Had it not been for the passengers on Flight 93, hundreds of members of Congress--as well as their staffs--might have been killed. As al Qaeda understood, that could have thrown America's entire political system into chaos. If Congress had been unable to make the constitutionally required quorum of more than half of all seats, the legislative branch might well have had to largely shut down, with catastrophic consequences for the nation's ability to govern itself and develop a response to the attacks--and perhaps even for America's democratic tradition.

Without Congress, the president might have had to declare martial law--at least until the states could hold constitutionally mandated special elections--further traumatizing an already reeling population. Certainly, the executive branch would have been in sole control of carrying out all the critical tasks that government would be faced with: appropriating money to fund the war, rapid rebuilding, and other executive-branch operations; and passing emergency security orders, among other activities. Without the backing of Congress, those steps would have lacked legitimacy in the eyes of large sectors of the American public and the rest of the world. And in the long term, the precedent would have diminished the standing of the legislative branch, making it that much easier for the White House to rule unilaterally in the future. As the bipartisan Continuity of Government Commission (COGC) put it in a 2003 report: "If anyone doubts the importance of Congress in times of crisis, it is helpful to recall that in the days after September 11th, Congress authorized the use of force in Afghanistan; appropriated funds for reconstruction of New York and for military preparations; and passed major legislation granting additional investigative powers and improving transportation security. In the event of a disaster that debilitated Congress, the vacuum could be filled by unilateral executive action--perhaps a benign form of martial law. The country might get by, but at a terrible cost to our democratic institutions."

Soon after 9/11, the problem of how to ensure the continuity of Congress--and in particular, the House of Representatives--began to receive attention in Washington. The following year, two Beltway think tanks the center-left Brookings Institution and the right-wing American Enterprise Institute--collaborated to create the COGC, a bipartisan group of respected former elected officials and congressional scholars charged with devising a plan to fix the problem. Gerald Ford and Jimmy Carter were honorary co-chairs, while the scholarly heavy-lifting was done by former White House counsel Lloyd Cutler, as well as by Norman Ornstein and Thomas Mann, congressional experts at AEI and Brookings, respectively. Newt Gingrich also played a role.

The commission concluded that the threat of one or both houses of Congress being decimated by a terrorist attack was so grave as to require urgent action. "There is a gaping hole in our constitutional fabric that would allow large numbers of vacancies in Congress to continue for a significant period of time," the report stated. "The threat of terrorism remains high, and it is clear that our governing institutions remain prime targets. It is an urgent matter to repair that constitutional hole." The only effective way to do that, the commission made clear, was to allow governors to appoint special replacements for members of Congress killed in an attack. The replacements could be term-limited to the length of time necessary to hold new elections. But that could still be as long...