WASHINGTON — Years before New Jersey Republican Tom Kean Jr. was sidelined with an undisclosed medical concern, members of Congress joined the Confederacy, slipped into coma or stopped showing up for duties at the Capitol. Still, they hung on to their seats.
Virginia Sen. Carter Glass died in 1946, four years after a stroke, a period when he rebuffed calls to resign and vanished from the halls of Congress, reportedly casting a rare vote by proxy. Carl Mundt of South Dakota didn’t step foot on the Senate floor for almost three years after a stroke in 1969, before deciding to retire from office in 1972.
In October of that year, an airplane carrying two House members — Louisianan Hale Boggs and Nick Begich of Alaska — crashed in the Alaskan wilderness. Crews found Begich’s body but not Boggs’, and under their home states’ laws, both men remained on the ballots and were reelected.
“Members who are incapacitated — there is no mechanism to remove them,” Daniel Schuman, executive director of the American Governance Institute, a nonpartisan nonprofit, said by phone. “They still serve, their staff still operate, they proceed in that position until there’s an intervening election.”
Kean, 57, hasn’t voted in the House since March 5. He issued a statement on April 27 thanking colleagues and constituents for their patience. “My doctors continue to assure me that my recovery will be complete and that I will be back to the job I love very soon.” He did not share the nature of the medical issue.
Hazy category
Distinct from the death or resignation of a lawmaker, the physical or mental incapacitation of members of Congress falls into a hazy constitutional category, complicates day-to-day governance and, in a world of global threats, remains a legal weak spot in the foundation of the U.S. government.
The Constitution provides little guidance on the matter, said Roswell Encina, president of the U.S. Capitol Historical Society.
“The U.S. Constitution is relatively silent on the issue of congressional incapacitation (as opposed to vacancy),” Encina said by email. “In general, members’ seats are not declared vacant unless a death certificate is issued, though committee assignments may be reassigned.”
In a U.S. Supreme Court case, Powell v. McCormack, the justices ruled that the House may not bar anyone from being seated as long as they meet three requirements: 25 years of age minimum; a U.S. citizen for at least seven years and an inhabitant of the state they were elected to serve.
Expulsion from the House is exceedingly rare — most recently, in 2023, to Rep. George Santos (R-NY). Tossing a member out requires a two-thirds vote in the House or Senate.
“Of the 21 expulsions in congressional history, none have been due to incapacitation,” Encina said.
The majority of those successful expulsions were of men who supported the Confederacy during the Civil War, more than 160 years ago.
Losing representation
When a health issue sidelines a lawmaker, the public loses representation, legal scholar John J. Martin said in a Stanford Law Review article published in 2023.
“Each year, we read stories of congresspeople’s health issues preventing them from fully fulfilling their legislative duties,” Martin, a law professor, wrote. “Yet, there presently exist no practical means of ensuring that representation continues undisrupted for affected constituents. This is antithetical to our democracy,” he continued. “And with Congress’s average age on the rise, the problem may only get worse.”
Martin suggested a two-part constitutional amendment to address “congressional incapacity.” One section would allow members to pass their duties to a temporary appointee, the second part to delegate long-term caretaking responsibilities.
Amending the Constitution requires the support of three-fourths of state legislatures, or 38 of 50.
Kean is running in a tight reelection campaign. In his April 27 statement, he thanked “my Congressional team, who have kept constituent services and legislative work moving forward without interruption, and my political team for ensuring the campaign continues to run strong.”
Congressional staff are granted wide powers to run their offices. Signing letters, fielding questions and requests from the public, co-sponsoring bills and approving officials are tasks that staffers, often the chief of staff, routinely complete.
“Each member has the prerogative to run their offices the way they see fit,” Lisa Camooso Miller, a former congressional staffer and official within the New Jersey Republican Party, said by phone. “They’ll typically have a direct dialogue with their chief of staff.”
Changing conditions and personnel often lead to new office policies, said Camooso Miller, who gave birth when she worked for Dennis Hastert, a former speaker of the House. “I wrote the policy for Speaker Hastert when I went out on leave,” she said, adding that the COVID-19 pandemic forced remote work practices that swaths of offices still employ.
“COVID changed all of Washington,” she said. “Many, many offices have not gone back to office on a full-time time basis.”
There is a bright line: Only the member can vote, in committee and in the chamber. “Obviously votes can’t happen,” Camooso Miller said.
‘I was fortunate’
Systemic crises like another pandemic or a deliberate terrorist attack could paralyze congressional action, Taylor Swift, a policy adviser, told the House Select Committee on the Modernization of Congress, a now-disbanded panel about updating the federal legislature.
Remote voting during the pandemic was a “stopgap solution” to threats against Congress, Swift testified in 2021, when he pushed for the construction of a remote voting system to help protect the continuity of the U.S. government. Before the pandemic, the terror attacks of Sept. 11, 2001, anthrax-by-mail scares and Cold War-era nuclear perils spurred government officials to rethink how to run Congress under crisis or from another location, outside Washington, D.C.
“Congress must be able to function no matter what happens,” Swift said. “Congress must put procedures into place that guarantee its continuity in spite of an happenstance, chaos or constitutional crisis. Power must remain in the hands of representatives from all 435 districts and in the collective hands of the parties into which they are organized.”
While campaigning in fall 1980 for a House seat, Gladys Noon Spellman suffered a heart attack and entered a coma. Voters elected Spellman, a Maryland congresswoman, that November. In February 1981, months into her new term, after doctors determined she would never wake, the House adopted a resolution that she would not “recover sufficiently to be able to take the oath of office and serve as a Member of this House,” declaring a vacancy in her district.
In 2006, Sen. Tim Johnson, a Democrat from South Dakota, underwent brain surgery that left him comatose. He returned to the Capitol almost nine months later with physical limitations and remarked about how his mind was faster than his body. He won reelection in 2008. Staff for Rep. Gabby Giffords, an Arizona Democrat who was shot in the head in 2011, covered many of her duties until she resigned a year later to focus on her recovery.
When New Jersey Rep. Bonnie Watson Coleman (D-12th) faced cancer, the timing worked out, she said in an interview with NJ Spotlight News. “I was fortunate,” Watson Coleman said. “I’m not sure I missed any votes because my cancer treatment was in off weeks and because I wasn’t sick from it.”
“I don’t think there is any protocol per se,” said Watson Coleman. “Other than if the member may not be able to be there, but can communicate with staff, the staff can fulfill the member’s requests.”
Congress could write new eligibility requirements for lawmakers, said Schuman, of the American Governance Institute.
“They could by rule require competency or medical testing or something along those lines,” he said. But the desire is strong from party officials in a thin-margin Congress, where a vote or two can pass or sink a bill, to hold as many seats as possible, even if someone is not up to the job, Schuman said.
For example: David Scott, a Georgia Democrat who died in April at 80, in his later years often spoke haltingly. Aides rolled Scott in a wheelchair to and from votes in the House, where he frequently sat alone in the Speaker’s Lobby, a sequestered part of the Capitol just off the chamber floor.
“There is strong incentive, particularly in closely divided chambers, that you want the vote, even if the person is no longer capable,” Schuman said. “You give them the appearance of doing the work, but someone else actually does the work. But that is a terrible way to run a legislature.”
