An Opinion Editorial

A Bipartisan 28th Amendment

By Cathy Travis

As Constitution Day – and September 11 – approach, there is an opportunity for the bipartisanship that often eludes Congress.

9-11 could have crippled our government had the attack on the U.S. Capitol not been foiled in the skies over Pennsylvania.

If members of Congress were killed in a catastrophic attack, the nation has no constitutional provision to immediately re-populate the U.S. House of Representatives, the legislative body intended to be closest to the people. (The 17^th amendment allows governors to appoint senators if they die or leave office.)

Since Congress is Article I – and the U.S. House of Representatives is the first and most democratic organ of our government – it’s time to plan to reconstitute the U.S House of Representatives under dire circumstances in a 28^th Amendment … and pray we never need it.

The trick is to do it fairly for both parties; earlier attempts in this decade rightly failed following naked attempts to gain a partisan edge.

Here are the two parts for an amendment to re-populate the U.S. House of Representatives quickly: empower governors to schedule elections; and to appoint temporary members – from the state legislature, by party affiliation of lost delegates – who may not seek the office.

Prohibiting temporarily-appointed members from running in the concurrent special election focuses their time and energy on emergency work in Congress, leaving the campaigning and elections to others in the state.

Elections will take months, so appointments will be urgent, to conduct business until voters elect new members.

This amendment serves two purposes: it keeps the partisan makeup in Congress consistent with what state voters endorsed in the last election; and it provides for the continuity of Congress while states conduct special elections.

Congress’ standard in fashioning the amendment should be: would it be considered fair by republicans if democratic governors did the appointing and vice versa? When considering constitutional matters, fairness must never be figured in the short term political advantages for either party.

Since the House of Representatives is the only truly democratic organ in the Constitution (senators can be appointed by governors, and presidents are selected by the Electoral College), the 28^th amendment must follow democratic constitutional traditions as closely as possible.

Article I, Section 2 of the Constitution says the people who vote for the largest body of their state legislatures are eligible to elect members of the U.S. House of Representatives (convoluted, but useful).

A 28^th amendment can hew closely to that with governors appointing members of their legislature to the U.S. House to temporarily fill vacancies in the state’s delegation. By appointing temporary members by party affiliation of the delegation members lost, Congress’ partisan makeup will always remain the same.

For example, if a state delegation lost two republicans and one democrat, the governor would appoint two republicans and one democrat serving in the largest body of the state’s legislature (usually a House of Representatives or House of Delegates).

The Constitution can be amended two ways (laid out in Article V) but only one formula has ever been followed: both Houses of Congress must pass a proposed amendment with a two-thirds majority; then 75% of the states must approve it.

The Constitution has only been amended 27 times, underscoring the rarity of the need for amendments and the difficulty in amending our most supreme legal document.

Everyone has a favorite issue they want illuminated in the United States Constitution. But the continuity of our government, particularly at a moment of great constitutional peril, is a cause for all Americans, whatever their partisan preference. Who would declare war, absent Congress?

Congress can prevent partisan tinkering, or government catastrophe, with this bi-partisan idea. It would be a worthy of both Constitution Day, and the 9-11 observance.