What happens if half of Congress dies? Even Congress isn't sure.
What would happen if a major disaster hit America, millions died, air traffic ground to a halt, electricity was down and Congress needed to act?
And what if half the members of Congress were among the dead or missing?
These aren't pitches for a disaster movie set in Washington. These were all serious scenarios floated by members of Congress tasked with coming up with ways to bring Congress into the modern world--a world where cyber threats, pandemics, nuclear war and political violence are all well within the scope of possibility.
"This isn't just hypothetical anymore," said Rep. Ed Perlmutter, D-Colo., at a hearing this week of the Select Committee on the Modernization of Congress.
Perlmutter recalled recent political violence including the January 6th attack on the Capitol, where armed rioters were yards away from where lawmakers hid and when a gunman shot at Republican members practicing for a charity baseball game in 2017.
Former Rep. Brian Baird, a Democrat, told the committee that with razor thin majorities in Congress, any one of those events — including the baseball shooting — could have left the country in a crisis.
"The reality is, had 20 members of the Republican Conference been killed that day," Baird said. "The balance of power in the House of Representatives would have changed."
For committee chairman Rep. Derek Kilmer, D-Wash., the seriousness of the problem became apparent at the State of the Union address earlier this year, with all but a handful of the most powerful people in Washington all in one room.
"It struck me that, if God forbid, something happened to the Capitol, under the current law, Congress would be consistent [sic] of the people who had COVID and the folks who were boycotting," Kilmer said in an interview with NPR. "You could literally have a Congress that was consistent of 15 people. In a circumstance where the country is going through a national crisis, when there's real questions regarding the legitimacy of the people's house, if it's only constitutive of constituted 15 people."
Contingency plans are usually left to emergency planners and disaster experts. In the case of the president, there have been laws passed and revised since the 1700s to address the line of succession. In the case of the House of Representatives, the Constitution is actually the challenge, not the solution.
George Rogers, a former general counsel for the House Rules Committee, testified about the additional layer of trouble facing the House if a majority of members are dead or incapacitated because it could take months to get Congress up and running because only way to replace them is to hold a special election.
"The founders didn't want appointments," Rogers said. "At no point did [James] Madison talk about the politically connected picking their successors."
But special elections for the House can take, on average, 150 days to conduct.
One way to change that is to amend the Constitution-- a process that requires a bill to pass with two-thirds support in both the House and the Senate before being ratified by three-quarters of the states.
"For what it's worth, it took a constitutional amendment to lay out a process through which vacancies in the United States Senate get filled," Kilmer said. "Interestingly enough, that has not happened for the House."
But the replacement scenarios aren't just a problem in cases where whole swaths of Congress are dead. Members also discussed situations where members are hospitalized or incapacitated or if half of the country is unable to conduct an election.
Another possibility was offered by South Carolina Rep. William Timmons, the committee's top Republican: What if only the powerful members, those in the presidential line of succession, are dead and nobody can agree about what comes next?
"Think of a Designated Survivor kind of situation - we've all seen the show," Timmons mused. "He's getting sworn in as acting president, you got 30 members of Congress who are sitting here saying, 'Well we're gonna elect a speaker.' That new speaker then is gonna say, 'I'm the president,' and the designated survivor is gonna say, 'Well, are you?' Then they're gonna say, 'Well let's go to the Supreme Court. Ooh, there's no Supreme Court, what do we do?'"
Former congresswoman, cabinet member and one-time designated survivor Donna Shalala told the committee that replacing members becomes even more complicated if the two parties are affected unevenly.
"None of us believe that we should have anything other than elected representatives and that anything we do should be temporary to pull the government together," she said. "We don't want to shift from one party to another, just because a certain party lost more members."
The question has become more pressing in recent years as Congress has confronted the real possibility of disruption. Members repeatedly raised concerns that the institution has simply been lucky that recent threats haven't turned catastrophic.
Lawmakers have updated some processes to help Congress work better over the past two years during the Coronavirus health emergency. Lawmakers have virtual hearings and meetings with constituents and the House currently allows members to vote by proxy.
But those measures were intended to be temporary. Rep. Beth Van Duyne, R-Texas, pointed out that as the pandemic stretches on, lawmakers are setting new standards for what that can mean.
"The definition of temporary, the definition of incapacitation and the definition of emergency I think have been redefined over the last two years," she said. "I have been here for almost 15 months and there are members who I have yet to meet."
At a time when two-thirds of Americans say they lack confidence in major U.S. institutions, Kilmer says the stakes are extremely high.
"You run the risk of potentially having a Congress that is not reflective of the United States of America, potentially lacking the legitimacy that's needed in a national crisis," Kilmer said. "And at worst — incapable of doing its job."
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