'What happens if we do die?': Congress still stalled on continuity plan after 9/11

WASHINGTON — Brian Baird has spent a lot of time thinking about death over the last 25 years.

Not just his own, but also his former House colleagues’.

Making his way through the Longworth House Office Building on 9/11 and urging people to evacuate after seeing smoke rising from the Pentagon out of his seventh-floor window, Baird was struck by the question that still haunts him.

“I’m running through the building, evacuating people, wondering if we’re going to die in the next few minutes,” he said in an interview this month. “As I’m in the middle of that, saying, ‘What happens if we do die?’ Not in some personal, existential way, but really — what provisions exist to keep the Congress functioning if a lot of people are killed?”

Baird, a Democrat from Washington state who left Congress in 2011, went home that night, reread the Constitution and began his research.

What he learned was if many lawmakers were killed in a catastrophe, Congress could be incapacitated, too. Only directly elected members can serve in the House, meaning a special election must be called for every vacancy. That process can last for months, leaving constituents without representation.

Two and a half decades later, not much has changed — including Baird’s frustration.

“If you’re hearing exasperation in my voice, it’s 25 years of dealing with” the same inaction, he said. “Members of Congress have an obligation to ensure a representative legislative body, and they’re failing in that.”

A string of close calls have shaken Capitol Hill since then: a mass shooting at a GOP baseball practice, a train crash with many lawmakers on board and a mob attack on the Capitol. But Congress is still unprepared for the aftermath of a mass casualty event, according to Baird and others.

“If United 93 ... had left on time — it was headed for the Capitol — we would have had an almost fully loaded jet plane hitting the cast iron dome when there were lots of members around. We could have ended up with more than half the House dead or missing,” said Norman Ornstein, a former Roll Call columnist and retired scholar at the American Enterprise Institute.

The House needs a quorum to conduct its business, meaning a majority of its members must be present. After 9/11, lawmakers tried to address that problem, updating House rules in 2005 to include a method for establishing a provisional quorum in the case of a “natural disaster, attack, contagion, or similar calamity.”

Ornstein sees that rule as problematic, and he’s not alone.

“It’s totally unconstitutional ... both in intent and in the letter of the Constitution. But under the House rule, whoever survives, that’s the House,” Baird said.

‘Holes in the plan’

With the memory of the 2001 terrorist attacks still fresh in their minds, lawmakers took other steps, too. They passed a law requiring faster special elections when vacancies in the House exceed 100.

Years later, however, a number of state officials reported they were unaware of the federal law, and some doubted they could realistically pull off an election within 49 days as required, according to a 2024 report from the Government Accountability Office.

A better plan to fill mass vacancies in the House, according to some, would be to temporarily appoint replacements — but that would require an amendment to the Constitution.

That’s exactly what the Continuity of Government Commission, a nonpartisan group convened by AEI and Brookings, recommended in 2003. Ornstein served as a senior adviser, reprising that role when the effort was rebooted amid the COVID-19 crisis.

While constitutional amendments are notoriously hard to achieve, the group’s 2022 report once again urged that path as the best and most permanent, citing recent threats like “the pandemic, disputed elections, and politically motivated violence against elected officials.”

During a national emergency, Congress must be all the more ready to act, said John Fortier, a senior AEI fellow who served as executive director of the continuity commission.

“You have the possibility that Congress either doesn’t function at all or functions in a very distorted way, and doesn’t really allow America to respond to the crisis,” he said, citing potential needs like emergency relief funding.

The issue isn’t just casualties in the form of death, but also incapacitation. And it’s not just limited to the House. While most state governors are already empowered to fill vacancies in the Senate, there is no interim process for senators who may be temporarily unable to act — as could have happened during the Capitol’s 2001 anthrax scare if the powder had gotten into ventilation systems.

“It’s not that there is no plan; it’s that there are holes in the plan,” said J.D. Rackey, associate director of structural democracy at the Bipartisan Policy Center.

According to Rackey, Congress has been in a “stasis period” since 9/11, with many believing that the two parties would come together to respond to a national emergency like they once did 25 years ago.

“Given the current state of our politics, I don’t know if that’s a safe assumption to have,” he said.

‘Complete fantasy’

Baird said the less Congress does to prepare, the more it incentivizes bad actors.

“There are more bullets in the round of a semi-automatic pistol than it would take to change the balance of power in both the House and the Senate,” he said.

Threats against members of Congress have only grown since 9/11, and programs to bolster their office and home security have launched since the Jan. 6, 2021, attack on the Capitol. For fiscal 2027, the Capitol Police requested more than $1 billion to help deal with the current threat environment — its largest ever request. But Baird said the focus on individual safety misses the point.

“The idea that we can somehow protect ourselves as individuals through increased security is utter and complete fantasy,” he said.

It’s not that some lawmakers haven’t tried. In 2003, Baird floated a constitutional amendment that would require lawmakers to submit a list of people who might replace them if the worst were to happen, and he would go on to reintroduce that proposal again during his 12 years in Congress. Former Rep. Derek Kilmer, D-Wash., took up the mantle from him after he retired, championing the issue when he chaired the Select Committee on the Modernization of Congress. Kilmer left Congress in 2025, and Rep. William R. Timmons IV, R-S.C., reupped the push to amend the Constitution this July.

But aside from that and a couple of hearings in 2022 and 2024, it’s been mostly crickets on continuity.

“This is not a Congress that is thinking about its own institutional responsibilities. So I just don’t see any champions,” Ornstein said.

Members are reluctant to spend time on things like constitutional amendments, which involve an arduous ratification process and are seen as pie in the sky. And gaming out a grim future for Congress is like any break-glass planning — a thankless task.

“It’s really hard to convince members to do politically difficult institutional work when the goal is that no one ever sees the payoff,” said Molly Reynolds, vice president and director of governance studies at Brookings.

However uncomfortable, lawmakers should make a serious effort to study the issue internally, according to Rackey’s group. Convening a Joint Committee on the Continuity of Congress was among the recommendations recently urged by the Bipartisan Policy Center for the 120th Congress.

House Administration ranking member Joseph D. Morelle, D-N.Y., said though he does think the continuity problem is worth exploring if Democrats win back the majority, it’s not top of mind.

“My priorities are really sort of getting at questions of dark money and cleaning up our election system and rooting out corruption,” he said.

Years out from his time in Congress, Baird said he still spends time thinking about 9/11 and what could have happened at the Capitol if the day had gone differently.

“One way we can honor the sacrifices of the first responders and others and the loss of the innocent people would be to make sure that we have disincentivized future attacks,” he said.

He acknowledges that no one likes to think about their own mortality. But he does think it’s necessary, especially if you want to serve in Congress.

“You better get pretty comfortable with the possibility of your own death in order to deal with it responsibly,” he said.