Defeated Senators, Arms Treaties, And Lame Duck Sessions
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?
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.