The Feinstein Situation Shows the Senate Dems Have No Plan
Dianne Feinstein’s decision to step back as a member of the Senate Judiciary Committee as she recovers from shingles is a reminder of a larger dilemma facing the Senate: what to do when senators, serving six-year terms, are incapable of fulfilling their role for months or even years. Outside of voluntary resignation, the options the Senate faces are either expulsion—requiring a two-thirds vote—or living with a long-term vacancy or a senator truly incapable of making appropriate decisions.
This is not a new problem, but it’s one we need to fix, finally. Karl Mundt, a senator from South Dakota, suffered a debilitating stroke late in 1969, and remained unable to work while occupying his Senate seat until his term ended in January 1973. During those three-plus years, he was removed from his committees and his wife ran his staff. But she refused every request to have him resign. South Carolina’s Strom Thurmond, who served for 46 years in the Senate until age 100, was visibly infirm and confused during his final term, and his chief of staff was effectively making decisions for him for years.
Then there are cases of senators suffering serious and debilitating physical injuries or diseases. Tim Johnson of South Dakota and Mark Kirk of Illinois had brain injuries that kept them out of the Senate and facing surgery and rehabilitation for months before both returned to finish out their terms. Ted Kennedy and John McCain had glioblastomas that meant long absences until both died from their brain tumors. And there are more limited absences, such as John Fetterman’s for two months to deal with his clinical depression.
When the American Enterprise Institute and the Brookings Institution created the Continuity of Government Commission after 9/11, my fellow members and I grappled with this issue. We considered what to do when a terrorist attack and an anthrax scare aimed at the Senate had the possibility of putting dozens of senators in intensive care, leaving the chamber potentially for months or years without a quorum and unable to operate. And then, of course, COVID created another danger of mass incapacitation with no clear remedy.
Our original commission recommended a procedure for temporary emergency replacements, individuals who could serve until the incapacitated lawmakers could sign affidavits indicating that they were ready and willing to resume their seats. After the pandemic began, our reconstituted commission recommended a form of remote voting if lawmakers were not capable of physically coming to the Capitol to vote on the floor or in committees. The House implemented a system of proxy voting, which was eliminated this year when the Republicans took the majority. The Senate did nothing.