Fifty years ago, during the month after the assassination of President John F. Kennedy, Senator Birch Bayh (D. Ind.) introduced S.J. Res. 139 to address gaps in America's provisions to ensure presidential continuity. As modified, Bayh's proposal became the Twenty-fifth Amendment to the Constitution which provided procedures to fill a vice-presidential vacancy and to handle presidential inability. The Amendment represented an impressive accomplishment to address some then-existing gaps in arrangements to make sure that America always had a functioning president.
Even more remarkable than what Bayh and his colleagues in the 88th Congress did from 1963 to 1965 regarding presidential succession is what 25 succeeding Congresses over nearly one-half century have not done regarding remaining gaps in governmental continuity. Congress has ignored a host of problems notwithstanding awareness of them and some near misses that show that these potential crises are less remote than one might imagine.
Although the Twenty-fifth Amendment reduced the likelihood that anyone other than a vice president would ever succeed to the presidency, it could not eliminate the possibility of a double vacancy in the nation's two highest offices. In fact, when Kennedy was assassinated Vice President Lyndon B. Johnson was equally vulnerable in an open car in the same motorcade. The governing succession law provided then, as it does now, that the Speaker of the House of Representatives and President pro tempore of the Senate followed the vice president in the line of succession. Although no one in 1963 regarded Speaker John McCormack and President pro tempore of the Senate Carl Hayden as suitable presidents, Bayh's proposal of a Cabinet line of succession after the VP was discarded to avoid offending legislative leaders and thereby killing the entire measure.
As unimaginable as succession of McCormack or Hayden would have been, at least neither event would have changed party control of the White House. Yet since 1969, every president except Jimmy Carter has served at least part of his term with a Speaker of the opposing party. During 31 of the last 44 years, succession of the Speaker would have changed party control of the White House. The current Senate president pro tempore, Patrick Leahy, might be a plausible successor, but most who have held his job, a position awarded to the majority senator with most seniority, were unsuited to act as president. Imagine Strom Thurmond at 98 (or at any age) as acting President. Or 92 year old Robert Byrd or 85 year old John Stennis. Succession should run through the Cabinet as Bayh proposed one-half century ago.
But even Cabinet succession has problems. Congress has included Cabinet members after the two legislative figures in a long line of officeholders to guard against a single attack eliminating multiple successors. The chance of such a disaster may be remote but it is deemed sufficiently possible that one Cabinet officer always skips the State of the Union as a hedge against this scenario.
The problem isn't just that all successors work in or near Washington, D.C. and are often near one another. The bigger hazard is that most in the line of succession are unsuited to act as president, particularly following events that would present the greatest crisis our nation ever encountered. If you doubt the point, ask yourself how many Cabinet members you can name other than perhaps the Secretaries of State, Treasury and Defense and the Attorney General and I'll throw in Secretary of Health and Human Services Kathleen Sebelius whose name recognition now is artificially high. Penny Pritzker, Thomas Perez, Shaun Donovan and others may be good public servants but they seem implausible presidents especially following a devastating attack on the nation's capital. At a time when it would be important for a leader to be perceived as legitimate and schooled in dealing with the military and with security matters, it's unlikely that a Secretary of Commerce, Labor or Housing and Urban Development would be an optimal Commander-in-Chief.
The presidential electoral system, as we learned in 2000, is another accident waiting to happen. Put aside the irrationality of the Electoral College system and the risk of malfunctioning voting technologies. Suppose a presidential candidate or vice-presidential candidate were killed or disabled right before voting? Suppose the president-elect and vice-president elect both died or were disabled? Suppose an event like 9/11 or Katrina occurred on or right before election day, thereby preventing some constituencies from voting?
Then there's the possibility of an incident killing or disabling many members of Congress. Most states empower the governor to replace a deceased or resigned senator but vacancies in the House can only be filled by election. Yet if an attack eliminated or disabled most members of that body, Congress might be incapable of legislating or of doing so in a legitimate and representative fashion. Even worse than its present dysfunction, Congress and accordingly the government would be incapable of operating in accordance with law.
9/11 could have made this contingency reality had American Airlines Flight 77 crashed into the Capitol Building rather than the Pentagon or had hijackers of United Airline 93 not been diverted by passengers. Congress considered, but declined to act on, measures that would have provided for some ability to appoint replacements. Some argued that members of the House should be elected, not appointed, to preserve the body's democratic character. Of course, they should whenever possible. But surely reasonable measures could be adopted to allow for appointment in this limited situation to prevent the entire governmental system from failing in its hour of gravest danger.
Just as November 22, 1963 was a wakeup call regarding presidential succession and inability, 9/11 should have been regarding remaining governmental continuity gaps. Vice President Dick Cheney, to his credit, took these problems seriously and after 9/11 often worked at a location away from President George W. Bush to prevent a double vacancy. Cheney was mocked for frequenting these undisclosed secure locations. In fact, he was alert to the danger at a time Congress pretended the problem didn't exist.
It's time for Congress to address these dangers. It may not be able to solve each of these problems (or others not mentioned here). But fifty years after Bayh introduced S.J. Res 139, it's time to take the next steps to fill remaining gaps.