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Defeated Senators, Arms Treaties, And Lame Duck Sessions

James Joyner’s post today about the efforts of Jon Kyl and several incoming Senators to delay a vote on the START treaty brought to mind an episode from the second season of The West Wing titled The Lame Duck Congress, aptly enough. In that episode, President Bartlet’s staff debates whether he should call Congress back into session after the mid-term elections so that the Senate can consider a Comprehensive Test Ban Treaty. It’s made clear early in the episode that changes in the Senate, most specifically the defeat of one Democratic Senator from Pennsylvania, mean that it will be difficult if not impossible to pass the treaty when the new Congress convenes.

At one point, White House Communications Director Toby Ziegler sits down with the defeated Pennsylvania Senator, who explains why he wouldn’t be able to vote in favor of the treaty if a lame duck session was called:

The issues are somewhat similar here, and the request from Kyl and the incoming Senators also brings up some of the concerns about lame duck sessions that I raised in my post earlier this week:

The ability of representatives, many of whom have been voted out of office, to speak on legislation strikes me as being somewhat anti-democratic to say the least, and creates a tremendous temptation for abuse. Outside of amending the Constitution again, though, I’m not sure how we can stop it from happening except by appealing to the better natures of our Representatives demanding that Congress stop abusing its power.

I’m not certain that voting on the START Treaty constitutes the kind of abuse of power that I was concerned about in that post, but it also doesn’t arise to the level of the kind of emergency legislation that must be passed before the end of the year. Like James, I generally support the START Treaty and think the Senate should pass it, but I don’t think it would be a travesty if the current Senate were to let the next one make the call on ratification.

The story, though, and the clip above raise an interesting question. What should be the responsibility of a representative who’s been defeated by a member of the opposing party when it comes to voting on a controversial piece of legislation before their term expires?

Bruce Ackerman takes the position that the entire idea of people who’ve been defeated acting at all unless there’s an emergency is undemocratic:

There’s no need for a lame-duck Congress to meet when it comes to less-pressing matters. Here the old Progressive reasons motivating the 20th Amendment still apply with full force. It is utterly undemocratic for repudiated representatives to legislate in the name of the American people. Worse, the prospect of a lame-duck session encourages sitting politicians to defer big issues till after Election Day and thereby avoid scrutiny by the voters.

These basic principles of the 20th Amendment have been forgotten. After 1954, there was a 16-year interlude in which lame-duck sessions were unknown, but they reemerged on four occasions during the 22 years between 1970 and 1992 – without any emergency justification. Since 1994, lame-duck meetings have become routine. With a single exception, every Congress has returned after the election.

They have been making very big decisions: passing NAFTA in 1994, impeaching President Clinton in 1998 and creating the Department of Homeland Security in 2002. These large initiatives serve as precedents for the coming lame-duck consideration of such weighty matters as permanent tax relief and the New START arms treaty with Russia.

Ackerman’s argument is persuasive. Congress could have acted on the START Treaty before the election, just as it could have acted on the Bush tax cuts and the appropriations bills for every department of Executive Branch, all of which still have to be passed by at least one House of Congress before the House and Senate go home. Instead of doing that, though, Congress went home early and put off all the hard work until after the election, when many of them went down to defeat. That’s at the very least irresponsible, and may well be undemocratic as Ackerman suggests.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. ponce says:

    “Unless there’s an emergency, is it proper for representatives who have been defeated in a mid-term election to be voting on controversial legislation?”

    Yes, otherwise America would be without a functioning government for two months every two years.

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  2. Ponce,

    Sorry but that’s just nonsense. Congress does not need to be in session for America to have a “functioning government.” In fact, some would argue that the government functions better when Congress is out of session.

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  3. mantis says:

    Senators are elected for six years, not five years and twenty-two months. I can see a senator not wanting to vote on a controversial piece of legislation during a lame duck, especially if it was an issue during the campaign and the electorate effectively rejected that senator’s position on it (like in the West Wing episode), but voting on a non-controversial treaty that has broad popular support is not the same thing.

    Not that it matters, as the Republicans in the Senate would never let it pass in the lame duck, because Obama wants it to pass, and we just can’t have that, regardless of the consequences.

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  4. sam says:

    OTOH, you’re asking them to repudiate the voters who did elect them to their term of office by not voting on legislation those voters, presumably, would approve. One doesn’t cease being an elected representative of the people for the term in which one serves because one has lost an election for the coming term.

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  5. tom p says:

    While I am sympathetic to your point of view, I would hardly call fulfilling ones constitutional duties “an abuse of power”. If it is, than it is the constitution that is at issue, not the lame duck congressmen.

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  6. ponce says:

    “Sorry but that’s just nonsense.”

    Shrill fringe libertarian anti-government rhetoric aside…what possible reason can the wingnuts offer up for why members of Congress shouldn’t serve out their Constitutionally mandated terms?

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  7. Who said anything about them not filling out their terms?

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  8. sam says:

    I think the argument, Doug, is what “filling out the term” means. You seem to think it means, if one has lost the election for the upcoming term, warming the seat and little else. I disagree for reasons I set out above.

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  9. Sam.

    Lame duck sessions used to be rare

    Now, they’re often when votes on pieces of controversial legislation or, in 1998, the Clinton impeachment, take place. Shouldn’t Congress have voted on stuff like that before standing for election in the mid-terms?

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  10. ponce says:

    1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

    2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

    Please point out where in the Constitution the demands of the crazy, idiotic wingnut Senators are supported.

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  11. ponce,

    I suggest you read the op-ed by Bruce Ackerman that I linked to.

    There are serious problems with lame duck sessions of Congress

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  12. ponce says:

    “I suggest you read the op-ed by Bruce Ackerman that I linked to.”

    Just seems to be mindless whining, not a serious legal challenge to Lame Duck sessions.

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  13. sam says:

    “Shouldn’t Congress have voted on stuff like that before standing for election in the mid-terms?”

    Surely. But that doesn’t go to the principle I based my argument on.

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  14. michael reynolds says:

    So we elect a Congressman for a two year term.

    Then you subtract the four days a week Congress isn’t in session, the time he has to take off to campaign, the time he’s paralyzed by the nearness of an election, the time he’s on his many, many vacations, and now the time he’s a lame duck and by my math these guys are spending about nine days a year attending to actual business.

    By the way, can anybody cite any evidence that the arms treaty played any role at all in even a single vote cast by a single constituent of even a single Congressperson?

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  15. Trumwill says:

    I can’t say I’m all that excited about the treaty. It would be a bigger deal if they were voting on something that was an actual campaign issue and/or something unpopular. I think the latter sort of takes care of itself, though, since most of the people in congress still have seats to protect.

    That being said, congress being out of session (barring an emergency) for two months every couple of years does not strike me as remotely problematic.

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  16. ponce says:

    “That being said, congress being out of session (barring an emergency) for two months every couple of years does not strike me as remotely problematic.”

    Then shouldn’t George W. Bush have been automatically impeached when his approval rating dropped below, say, 25%?

    Clearly, Bush had stopped representing anywhere near a majority of Americans long before his term expired, yet where were the cries the wingnuts for him to head back to his “ranch?”

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  17. Mithras says:

    Members of Congress are elected for set terms and while they hold those terms they have all of the power and authority that is granted to their office, whatever Bruce Ackerman says.

    His arguments aren’t very persuasive. In fact, he doesn’t make any. He just asserts that it’s bad for lame-duck Congresses to act. The idea is, I guess, that once a member of Congress has lost an election, then that person has no legitimacy in deciding anything. This ignores the letter of the constitution, so we have to look at policy arguments.

    First of all, not all members of Congress were defeated. In fact, the vast majority were not. Why are we preventing them from working because a minority of the members were defeated?

    Secondly, voters have a lot of reasons, only some of which make sense, for how they vote. How can we say there is a knowing “repudiation” of a particular lawmaker when we know how large a role, say, the economy plays? When — as Joyner points out today — a majority of voters don’t even know enough to say which party controls each house of Congress? Yes, ultimately, all political power rests with the people. But that’s not because the people are especially wise or knowledgeable; it ‘s because they’re the People. So in balancing our interests in seeing Congress do its work versus the theory of a finely-tuned level of public control, I don’t see any compelling need to depart from what’s required by the letter of the law.

    Third, there are a lot of situations in which an individual politician loses favor with the public badly and irrevocably prior to an election. If this argument about “repudiation” is correct, then why should such unpopular elected officials be permitted to act? Lots of politicians decide not to stand for re-election for just such reasons. Are they “lame ducks” from the moment they announce their decision? From the moment they decide?

    Finally, this whole argument ignores the role of the President in a mid-term election. If the President is confronted with legislation that he thinks was passed illegitimately, he can veto it. That’s part of the reason he has that power.

    I guess you could argue instead of “repudiation” that elected officials actions should always be subject to a subsequent vote by the people, the theory being all such actions should be weighed by the voters. That argument is even weaker and is easily dismissed: Lots of political actions occur in secret without the public ever learning of them or having the opportunity to learn of them.

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  18. bains says:

    “Senators are elected for six years, not five years and twenty-two months.”

    Congress is elected to fulfill a period of time, not all the days in that period. But if you really want to make that silly of an argument, the solution is easy. Seat the new congress within 30 days of the election. A thirty day notice is not uncommon in the business world, and in that business world (which provides all the funds the grubby hands of Congress then sully), it is expected that the retiring or fired employee is merely wrapping up only the ongoing business in which they are personally involved.

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  19. Trumwill says:

    Then shouldn’t George W. Bush have been automatically impeached when his approval rating dropped below, say, 25%?

    Huh? Popularity has nothing to do with the paragraph you cited.

    There is a tradition of last-minute pardons by departing presidents. I have some mixed feelings about that, to be sure. But I also view the executive as being different than the legislative. We can go a few months without a legislative branch (some states have legislative branches that only meet for one session every couple of years). Not so for the executive.

    A part of me does find a benefit of the parliamentary system as being an unpopular prime minister being unseated once he no longer has the support he needs to get legislation through. But for better or worse, we have the system we have in that regard.

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  20. ponce says:

    “We can go a few months without a legislative branch”

    America certainly would have been better off without the last few years of the W. administration.

    And giving modern polling techniques there was little doubt that George was not supported by a vast majority of Americans.

    Why allow him to remain in office if you’re against lame ducks?

    George W. Bush was the lamest duck who ever held federal office.

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  21. Pug says:

    Republicans. I don’t know. They just can ever seem to be consistent.

    Bill Clinton was impeached by the lame duck House in 1998. That seems to be fairly important legislation that might have waited a month two, no?

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  22. Dodd says:

    I have to agree with those saying it’s not improper. They’re elected to sit until January after the election in which they lost. It’s bad form for controversial legislation to be delayed until then, but that doesn’t make it improper. And of course the fact that the President & other Congresscritters will usually still be around to pay the political price for passing/signing such acts as something of check on abusing the lame duck.

    If this is or becomes a real problem, the fix is to amend the Constitution to shorten the time between elections and seating new Congresscritters — and/or for voters to apply pressure to those who will still be around after the new Congress is seated — not to informally geld Congress just because some of its members are lame ducks.

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  23. tom p says:

    “I have to agree with those saying it’s not improper. They’re elected to sit until January after the election in which they lost”

    Thank you, Dodd.

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  24. mantis says:

    Congress is elected to fulfill a period of time, not all the days in that period.

    So some of the days during their term, members of Congress are not members of Congress?

    But if you really want to make that silly of an argument

    It’s a silly argument that Congress still exists during a lame duck period?

    the solution is easy. Seat the new congress within 30 days of the election.

    Is that a solution right now? Because I was talking about the current and incoming Congresses. I’m all for shortening the lame duck period, but that doesn’t change the fact that at the moment, it’s about two months long.

    A thirty day notice is not uncommon in the business world, and in that business world (which provides all the funds the grubby hands of Congress then sully), it is expected that the retiring or fired employee is merely wrapping up only the ongoing business in which they are personally involved.

    So in your mind, a member of Congress is basically the same as an office worker in a corporation? They should just wrap up whatever they were working on and not do anything else? How about if the president strangles someone? Can they impeach and try him during the lame duck? Do you really think elected members of Congress are the same as regular businessmen? You don’t see any difference between the two jobs?

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  25. Zelsdorf Ragshaft III says:

    Dunce (ponce) I am not so sure if we could have done without Bush his last few years but I am damn sure we could have done without Obama these last two years. The last election is a representative of that fact. Guess you missed it.

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  26. ponce says:

    Zelly Rageshaft,

    Your boy Bush left office with a 20% approval rating.

    Obama has been in the in the 45-50% for well over a year now.

    His steady hand will be on the tiller of the ship of state for 6 more years

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  27. Trumwill says:

    Ponce: I’m sorry. I was talking about generalities and not OTHER PARTY BAD OTHER PARTY BAD. We don’t seem to be on the same wavelength, here.

    Pug: Excellent point about the 1998 impeachment. Given that the nature of the charges (no national security implications or impending acts of corruption), there’s no reason that it couldn’t have waited another couple of months.

    Everyone: Does anyone recall what moves the GOP made after their shellacking in 2006 before the new congress could be sworn in? That’s the closest comparison we have to the current situation.

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  28. [...] Carville Getting A Bit Testis With ObamaWeasel Zippers: Lame Duck House Refuses To Cut NPR FundingOutside The Beltway: Hey, Having Lame Ducks Do Nonessential Stuff Might Be UnconstitutionalAdministrivia: Live At Five is knocking off for the weekend so I can be initiated into the mysteries [...]

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  29. Rick DeMent says:

    Well I guess jamming an unpopular appointment to the UN is OK during lame duck sessions, or impeaching a president, but ratifying a treaty that no one really objects to is to much to consider despite that fact that it will make us look bad on the world stage and you know that thing about politics ending at the waters edge.

    I don;t recall the Senate republicans giving a rat’s ass about the will of the people after they got killed in 2006. On the contrary, they doubled down and obstructed all they could.

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