When a congressman dies in office, the seat is filled through a special election if the member served in the House, or through a governor’s temporary appointment followed by a special election if the member served in the Senate. In the meantime, the Clerk of the House or the Secretary of the Senate keeps the office running, staff continue helping constituents, and federal law directs the deceased member’s unpaid salary and a one-year death gratuity to the family.
Filling a House Seat
The Constitution does not allow anyone to be appointed to a House seat, even temporarily. Article I, Section 2 directs the governor of the affected state to issue a writ of election, a formal order that starts a special election to fill the vacancy.1Cornell Law Institute. Article I, Section 2, Clause 4 – House Vacancies Clause Federal law leaves the specific timing and procedures to each state.2Office of the Law Revision Counsel. 2 USC 8 Vacancies
Because no interim appointment is possible, the district has no voting representative until the winner is sworn in. Since 2011, House vacancies have typically lasted four to six months, depending on how quickly the state can schedule filing deadlines, a primary if required, and the final special election. Once the state’s chief election officer certifies the results, the winner receives a certificate of election, travels to Washington, and is sworn in by the Speaker as soon as the House is next in session. From then on the new member holds all the powers of the office for the remainder of the original term, with committee seats and seniority assigned by party leadership.
Filling a Senate Seat
Senate vacancies work differently. The 17th Amendment allows state legislatures to authorize their governor to appoint a temporary replacement, so the state does not have to go without a senator while it prepares for a special election.3Legal Information Institute. 17th Amendment, U.S. Constitution
Roughly 45 states give the governor this appointment power. The appointee receives a Certificate of Appointment signed by the governor and the secretary of state, presents it to the Senate for verification, and is sworn in with full voting rights and committee eligibility.
State rules vary in two important ways:
- About a dozen states require the governor to pick someone from the same political party as the deceased senator, and several of those limit the choice to a short list of nominees submitted by that party.
- A handful of states prohibit gubernatorial appointments entirely, so the seat sits vacant until a special election is held.
The interim senator serves until the special election, which often coincides with the next regularly scheduled general election. The winner then finishes out the rest of the original six-year term. Depending on when the death occurs, an appointee might serve anywhere from a few months to about two years.
What Happens to the Office and Staff
When a House member dies, the Clerk of the House takes over supervision of the office and staff. Under House rules, the Clerk manages operations, has authority to terminate employees, and, with approval from the Committee on House Administration, can hire staff as needed to keep the office running until a successor is sworn in.4Office of the Clerk, U.S. House of Representatives. Rules of the House of Representatives Both the Washington office and any district offices stay open to serve constituents.5Office of the Clerk, U.S. House of Representatives. Office of the First Congressional District of California
Staff continue processing casework, such as helping constituents with Social Security or Veterans Affairs issues. What the office cannot do is legislate. House rules require bills to carry the name of a sitting member, so the vacant office cannot introduce or sponsor legislation.4Office of the Clerk, U.S. House of Representatives. Rules of the House of Representatives Bills the deceased member had already sponsored remain in the process but need another member to carry them forward.
Payroll rules differ between the chambers. For House staff, federal law keeps employees on the payroll at their current salaries until a successor is elected.6Office of the Law Revision Counsel. 2 USC 5324 – Pay of Clerical Assistants as Affected by Death or Resignation of Member of House For Senate staff, employees stay on the payroll for up to 60 days after the senator’s death and work under the direction of the Secretary of the Senate.7Senate Employment Office. Senate Employment If a governor appoints an interim senator within that window, the new senator takes over the office and makes their own staffing choices.
Once the successor is sworn in, the interim period ends. The new member decides whether to retain existing staff or build a new team, and the Clerk or Secretary preserves equipment, records, and files until the handoff.
Pay and Benefits for the Family
Federal law sets the order in which a deceased House member’s unpaid salary and any other sums owed at the time of death are paid out. Under 2 U.S.C. ยง 5305, payment goes first to any beneficiary the member designated in writing, then to a surviving spouse, then to children or their descendants, then to surviving parents, and finally to the member’s estate.8Office of the Law Revision Counsel. 2 USC 5305 – Disposition of Unpaid Salary and Other Sums on Death of Representative or Resident Commissioner
Congress also traditionally authorizes a death gratuity, a lump sum equal to one year’s salary paid to the family or heirs. For a rank-and-file member that amount is $174,000.9Congress.gov. Congressional Salaries and Allowances In Brief Federal law classifies the payment as a gift rather than compensation, which affects how it is taxed.10Office of the Law Revision Counsel. 2 USC 4506 – Death Gratuity Payments as Gifts The gratuity is funded through the annual Legislative Branch Appropriations Act rather than paid automatically by statute, so Congress must approve each payment individually.
Does Congress Keep Working?
Yes. In the House, the Speaker announces that the “whole number of the House” has decreased by one under Rule XX. The whole number counts only representatives who are chosen, sworn, living, and still members.4Office of the Clerk, U.S. House of Representatives. Rules of the House of Representatives Because a quorum is a majority of that adjusted number, the remaining members can keep legislating without interruption. The Speaker’s announcement is final and cannot be appealed. The Senate continues to operate the same way, with the appointed replacement typically seated quickly enough that the state is rarely without both of its senators for long.