While the Constitution's 17th Amendment gives state governors the power to immediately appoint replacement Senators, there is currently no mechanism in place to quickly replace members of the House of Representatives.
Immediately after the 9-11 attacks, some congressional leaders began lobbying for a new constitutional amendment similar to the 17th, allowing the governors to appoint replacement members of the House of Representatives should large numbers of vacancies exist following a terrorist attack.
Perhaps the most stirring opposition to such an amendment came from House Judiciary Committee Chairman, Rep. James Sensenbrenner, Jr. (R-Wisconsin, 5th). "Such an amendment would destroy the uninterrupted tradition that only Members duly elected by their local constituents should serve in the House," stated Sensenbrenner in a press release. "Even worse, such an amendment would take away the people’s right to chosen representation while ignoring the current mechanism for preserving continuity in government the Founders, in their wisdom, included in the Constitution."
Listening to the Founders
Along with issuing that broadside, Sensenbrenner introduced legislation designed to mass-replace representatives through special elections. "As the Founders intended," according to Sensenbrenner.
His Continuity in Representation Act would provide for the expedited special election of new representatives to fill seats left vacant in "extraordinary circumstances," which the bill defines as occurring when the Speaker of the House announces there are more than 100 vacancies in the representation from the States.
Within 14 days after such an announcement, the political parties of States with House vacancies would each nominate one candidate to run in a special election to be held within 21 days. The Continuity in Representation Act also provides for judicial review, by a 3-judge district court panel, of announcements of vacancies by the Speaker of the House within 5 days of such announcement. The reviews would not subject to appeal, and state Governors would have the right to intervene in the case in order to have their views heard.
"James Madison used the strongest of terms when stating the House must be composed only of those elected by the people," said Sensenbrenner. "Madison wrote in the Federalist Papers that elections are 'unquestionably the only policy' by which the House can have 'an intimate sympathy with the people.' Far from envisioning a system in which state governors appointed those who would serve in the House, Madison wrote that the electors of federal representatives would be 'Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States.' Indeed, Madison wrote of the 'requisite dependence of the House of Representatives on their constituents,’ and that 'the right of suffrage is very justly regarded as a fundamental article of republican government.'"
In addition, Sensenbrenner noted that Article I, Section 4, of the Constitution gives Congress the authority to enact legislation like his Continuity in Representation Act by stating, "the Congress may at any time by Law make or alter" State election laws.
