Dating back to the beginning of the Cold War, Congress has always been woefully disengaged in thinking about its own mortality and planning for its own survival. President Dwight Eisenhower effectively had to build the secret Cold War congressional bunker at West Virginia’s Greenbrier Hotel of his own accord after Congress dragged its feet on planning how it would survive nuclear war. In the first two decades of the Cold War, more than 30 bills were introduced to deal with how to continue functioning in the event of a widescale death of its membership, yet while three such bills passed out of the Senate, all of them died in the House. Eventually Congress gave up the question entirely.
There are two catastrophic scenarios for Congress: The death of a large number of members and the incapacitation of a large number of members. Each comes with massively different outcomes in terms of its impact on legislative business and massively different outcomes for democracy.
The outright death of members of Congress puts in motion a relatively straightforward process, albeit a potentially slow one. The Senate, with its tradition of appointment by state legislature, largely has procedures to allow itself to reconstitute quickly through gubernatorial appointments, followed by special elections. The House, which prides itself on direct election by the people, has long fought any effort to allow for emergency appointments to the body, so any vacancies would be filled only by special elections, a process that would take months.
As representatives and senators die and vacancies arise, Congress can keep legally functioning no matter how small its remaining elected membership becomes—even though a notably smaller Congress might find its public legitimacy in question. Norm Ornstein—the scholar who has most consistently raised alarms about congressional continuity—pointed out after 9/11 that Congress has since the Civil War interpreted the quorum necessary for it to function as consisting of the majority of members “duly chosen, sworn, and living,” a definition settled on as a workaround to avoid the unpleasantness of the many senators and representatives who departed as the Confederacy seceded.
Nuclear war and terrorist attack scenarios contemplated, for instance, that even the death of 300 representatives, bringing the size of the House to 135, would allow a quorum of just 68 congressmen and congresswomen to continue legislating, leaving aside any uncomfortable questions about the partisan skew of those who survived and who would thus be making sweeping decisions about emergency measures.
More troubling, though, is precisely the scenario that Congress might face in a pandemic or biological attack, whereby a large number of members are sick and incapacitated—living, but unable to perform their congressional and constitutional duties. While the death of members subtracts from the overall number needed for a quorum (and changes the number for a majority vote) simple illness or incapacitation or quarantine doesn’t—and the process to declare the seat of an incapacitated member vacant is slow and rarely used.
Congress has only once in modern history declared a seat “vacant” ahead of a regularly scheduled election; in 1980, Rep. Gladys Noon Spellman (D-Md.) fell into a coma after suffering a heart attack and Congress legally declared her seat vacant four months later with her family’s permission.
That means that any wide-scale number of incapacitated members might quickly lead to paralysis even amid a fast-moving crisis like a pandemic; the Senate can’t function without the House and vice versa. A Congress that lacks a quorum in the House can’t pass appropriations bills, since the Constitution requires spending bills to originate in that body. Similarly, any mass illness or hospitalization of its members could easily start to skew Congress’ partisan mix and alter the number of votes required to pass legislation, particularly in the Senate with its more narrow partisan split—and its much older membership, where seven of its 10 oldest members are Republicans, including Majority Leader Mitch McConnell himself. In fact, the Senate alone is statistically likely to see more severe cases requiring hospitalization than the partisan split in the body.