Lame-Duck Congresses: Bug, Or Feature?

The 20th Amendment was supposed to eliminate lame duck sessions, but it didn't.

The Washington Post’s David Farenthold takes note of the fact that seventy-seven years ago, Washington was convinced that it had found a way to get rid of the hated lame-duck session of Congress forever:

Here’s the funny thing about this month’s lame-duck session of Congress, in which frantic lawmakers have pinballed from tax cuts to “don’t ask, don’t tell” to a nuclear weapons treaty:

It’s not supposed to exist.

In 1933, historians say, the country ratified a constitutional amendment intended to kill off sessions like this – in which defeated legislators return to legislate. The headline in The Washington Post at the time was “Present Lame Duck Session Will Be Last.”

But because of a hole in that amendment, modern Congresses have not only met as lame ducks but have used the post-election session to take some of their most memorable votes.

As Bruce Ackerman noted in a Post op-ed last month,  this is a phenomenon of relatively recent origin:

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.

Of course, prior to the adopting of the 20th Amendment the lame-duck problem was much worse. For those 144 years, elections were held in November, but new members didn’t take office until March 4th of the following year. It wasn’t uncommon for Congress to be in session, and enacting legislation, despite the fact that many of the  members voting had been defeated weeks before. Additionally, there were times of great political or economic crisis, such as after the Elections of 1860 and 1932, when sitting representatives and Presidents did essentially nothing to respond to the chaos around them while newly elected members sat on the sidelines, powerless to do anything.

It was in response to that problem, and the fact that modern transportation meant that it no longer took weeks for representatives to get to Washington, the 20th Amendment was put before Congress:

The trouble with lame-duck sessions began in 1801, when the outgoing Federalists used their last days in power to help appoint a bunch of judges. It flared up again in 1922, when President Warren Harding and the lame-duck Republicans tried to ram through unpopular legislation after their defeats.

Opponents said this was un-democratic: These sessions seemed to violate the ever-popular Washington rule that “elections have consequences.” Finally, Congress passed – and the states ratified – the 20th Amendment.

Historians say lawmakers thought they were ending lame-duck Congresses forever.

“This amendment will free Congress of the dead hand of the so-called ‘lame duck,’ ” Rep. Wilburn Cartwright (D-Okla.) said as it was debated in 1932.

Of course, it didn’t do that, and one of the main reasons is because that’s not at all what the Amendment said:

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.

All that the 20th Amendment did was shorten the time period between Election Day and the day that the new Congressional term would begin. Now, it’s probable that the drafters of the amendment believed that lame ducks would essentially be eliminated because members wouldn’t want to spend their time during the holiday season in Washington, but history has proven them wrong in that supposition. If they had truly wanted to eliminate lame duck sessions, then they could’ve added something like this to the Amendment:

Congress shall be forbidden from meeting and conducting business during the period after Election Day unless they have been called into emergency session by the President as provided in Article II.

There’s no indication, though, that any language like this was even considered when the amendment was drafted, so the assertions by its proponents that the Amendment would forever eliminate the lame-duck session of Congress was, at best, an exaggeration. Farenthold goes on to assert that with the possible exception of the 18th Amendment, no other amendment to the Constitution has failed in its purpose more than the 20th Amendment. That assumes, of course, that completely eliminating lame duck sessions was the purpose of the 20th Amendment at all. Given the way it’s worded, it is hard to believe that it was despite the statements of the late Congressman Cartwright. We still have lame duck sessions because the Constitution allows them, not because of some defect in the system.

FILED UNDER: Congress, US Politics
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Bob in Zion says:

    It was probably a feature, one of those hidden easter egg ones. It looks like they did something, but they knew they’d still get a few months to monkey around before they had to leave town for good.

    At least they shortened the time the lame ducks can do damage.

  2. UberMitch says:

    If you want to stop lame duck legislation, your proposed alternative amendment is flawed, and flawed in way that would have been apparent this year. Your language doesn’t account for the situation when the outgoing congressional majority and the president are of the same party. Had your language been enacted, what could have stopped Obama from calling the outgoing congress into session and doing precisely what they have done in real life?

  3. Nothing except public opinion would’ve stopped him

    But, that loophole is necessary because there are conceivable situations where Congress may need to be reconvened in the period between Election Day and January 3rd because of a national emergency.

    I would remind you, for example, that Congress declared war on Germany and Japan in December 1941. This was not a lame duck session, of course, but it is evidence of why we would need to allow the President to retain the authority to call Congress back into session if necessary.

  4. UberMitch says:

    I doubt public opinion would have any impact in this situation. Indeed, Obama has indicated that he does not fear negative public opinion regarding this year’s lame duck legislation, as he is going to sign all of it into law where he could have vetoed it.

    I suppose public opinion may have more sticking power in a world where an institutional norm developed so that art ii, sec 3’s “extraordinary occasions” language was taken to mean truly extraordinary. But, as we have recently seen demonstrated, when institutional norms are thrown out the window for political expediency, public doesn’t seem to care. See routine GOP filibusters in this last congress.

    Also, re other control’s on the pres’s power to call congress into session, I’m sure we can agree that if anything is a non-justiciable political question, the president’s judgment of what is an “extraordinary occasion” justifying calling congress into session certainly is.

  5. ponce says:

    Looking over the OTB archives for November and December of 2006, the last time Congress changed hands, I only found a single post on the Republicans’ lame duck session and it was pro-lame duck:

    “Well boo frickin’ hoo. Aren’t these guys still being paid? Didn’t these guys run two years ago promising to achieve certain things for their constituents? And, given that the party is about to go into the minority, wouldn’t it behoove them to get stuff done while they still can? ”

    https://www.outsidethebeltway.com/lame-duck_congress_throwing_in_towel/

    The torrent of anti-lame duck session posts we’ve seen on OTB over the past two months is quite a contrast to 2006.

    Wonder what changed?