Succession: Why Congress has no clear plan when lawmakers can’t serve

Rep. Tom Kean Jr. (R-N.J.) and former Senate Majority Leader Mitch McConnell (R-Ky.) have a lot in common.

Both have long spells of absences from Capitol Hill due to health.

Kean was out for months this winter and spring. But until he returned in June, no one knew exactly what was going on. Neither Kean nor his office or family said a word about why the congressman was AWOL. 

Upon his return, Kean announced he endured a lengthy hospital stay for depression.

McConnell’s absence is similarly cryptic.

His office simply declared in June that the Kentucky Republican was hospitalized and receiving "excellent care." 

Yet it took weeks to learn that McConnell was hospitalized for a fall and then pneumonia. 

The dearth of information fueled conspiracy theories about whether McConnell was even alive. It prompted a letter of inquiry from Kentucky Gov. Andy Beshear (D) as to the senator’s well-being.

He told SiriusXM he hadn’t "heard a thing. Not an email. Not a letter. Not a call."

But that’s not where the similarities between Kean and McConnell end.

During Kean’s absence, hardly a day went by when someone didn’t ask me about how they could potentially fill his seat. The same has gone on with McConnell for the past month-and-a-half.

There’s conjecture about whether their respective state’s governors, or even the House or Senate could declare their seats vacant since they haven’t shown up "for work." The American electorate is angry right now. 

Prices are up. They’re disenchanted with politics. 

At the very least, they want to know that the people they elected are on the job. And if they’re not, voters believe they’re entitled to explanations from those who serve them.

WATCH: LAWMAKERS REVEAL WHERE THEY STAND ON CONGRESSIONAL TERM LIMITS AFTER RECENT HEALTH SCARES

No one received timely clarity from either Kean or McConnell.

Which brings us to why some constituents think there should be a mechanism to remove lawmakers who are infirm or out for prolonged periods of time.

It’s not that easy.

Here are the constitutional qualifications for someone to serve in the House, according to Article I, Section 2: "No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."

The Senate mandates are similar, as dictated by Article I, Section 3 of the Constitution:

"No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years, a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen."

Article I, Section 5 of the Constitution declares that "Each House shall be the judge of the elections, returns and qualifications of its own Members." It goes on to say that "with the Concurrence of two thirds, expel a Member."

So, the Constitution is clear about the requirements to join the House or Senate. 

It also grants both bodies the agility to decline to seat someone and even remove them from office. 

But despite granting those authorities to Congress, the Constitution is silent on why the House or Senate might not seat someone. And, the Constitution is vague on reasons to expel a lawmaker.

That’s why we must rely on the standard established in Article I, Section 3 on qualifications of House and Senate members. 

It says nothing about health. It says nothing about mental capacity. It says nothing about attendance or dereliction of duty. 

It just determines the minimum criteria for people to serve in Congress. And if either the House or Senate decides they don’t want you here, they can either bar you at the door or kick you out.

Besides the House and Senate expelling someone, a governor must declare a seat vacant. And there’s nothing anyone can do to force someone to step aside.

The late Sen. Carter Glass (D-Va.) of Glass-Steagall fame, if you know banking law, fell ill in 1942. He was absent from the Senate for four years before dying. Glass rejected entreaties for him to resign.

The late Sen. Karl Mundt (R-S.D.) suffered a stroke in 1969 and couldn’t speak. Mundt’s wife nixed calls by Senate Republicans, demanding he resign. Mundt remained in office until early 1973, when his term expired.

Other lawmakers have missed swaths of time due to illness over the years prior to Kean and McConnell.

The late Rep. Lane Evans (D-Ill.) was absent for extended periods, suffering from Parkinson’s Disease in the 1990s and 2000s.

Former Sen. Mark Kirk (R-Ill.) suffered a stroke in 2012. He missed more than a year before returning to the Senate.

House Majority Leader Steve Scalise (R-La.) missed several months after he was shot in 2017 at the GOP Congressional baseball practice.

Sen. John Fetterman (D-Pa.) was away for a couple of months after battling depression shortly after he joined the Senate in 2023.

These are just a few instances of lawmakers missing chunks of time because of illnesses.

There is only one instance in recent history where the House or Senate took action because of someone’s bad health.

On October 31, 1980, the late Rep. Gladys Noon Spellman (D-Md.) suffered a heart attack. 

Voters re-elected Spellman a few days later. But Spellman fell into a coma, and she was unable to take the oath of office when the new Congress convened in January 1981. 

Regardless, the House took the extraordinary step of voting to pay her – even though she wasn’t a Member. It was obvious that the Maryland Democrat would never be well enough again to assume office. The House then voted to declare her seat vacant, compelling Maryland to hold a special election.

So, the House didn’t remove Spellman because of her being incapacitated. 

She wasn’t a Member at that stage. But, under Article I, Section 5 of the Constitution, the House asserted its authority to "be the judge of the elections, returns and qualifications of its own Members."

It deemed that Spellman was not qualified.

The former President of the Maryland Senate then ran for the seat and won the special election. That’s how former House Majority Leader Steny Hoyer (D-Md.) came to Congress.

Spellman lived until 1988, never regaining consciousness.

LINDSEY GRAHAM’S FINAL ACT REVERBERATES IN SENATE AS SISTER IS URGED TO 'KEEP PEDALING'

Just before the Senate swore-in Sen. Darline Graham (R-S.C.) last week, I received a call from someone asking if she was a "full senator." I answered in the affirmative.

Either you are or you aren’t. 

You can vote. You can serve on committees. You can speak on the Senate floor. You have an office in the Capitol complex. It doesn’t matter how you got there. Darline Graham was a senator – via an appointment after the death of her late brother, Sen. Lindsey Graham (R-S.C.)

The Senate granted Graham the same committee assignments as her brother. That’s when someone asked if she could vote on the Judiciary Committee. 

Same answer. She is a senator.

South Carolina Gov. Henry McMaster (R) has appointed her to at least serve out the balance of Lindsey’s term, which expires in January. 

Darline Graham is now running for the full term which begins in January. But she must first make it through a primary – and potentially a runoff – in order to secure the Republican nomination. Then win the full term in November.

Note that we talked about McMaster appointing Darline Graham to the Senate. All but four states allow the appointment of senators. However, the Constitution bars appointment to the House. 

So if a House member dies or resigns, the state must fill the seat via a special election. That’s why some House seats sit vacant for protracted periods.

Lindsey Graham’s seat was vacant barely two days before McMaster tapped the late senator’s sister to step in.

This is why Republicans have such a tenuous hold on the House right now. 

There are currently 431 members. The breakdown is 218 Republicans, 212 Democrats and one Independent who teams up with the GOP. Extended absences by Kean — and to a lesser degree, Rep. Neal Dunn (R-Fla.) because of a major heart condition — made it hard for the GOP majority to operate. 

Resignations or deaths could really alter the balance of power.

But once someone is in a House or Senate seat, they’re in. There’s no succession plan for health.

Average Americans suggest that they would lose their jobs if they didn’t show up for work. Even with a serious health condition. 

But the same thing happens in Congress. Every two or six years. People vote for the House and Senate.

Those lawmakers may in fact lose their jobs. But it might just take a very long time.