What’s a Lame Duck Congress to Do?
Some Republican Senators-elect are imploring Harry Reid not to consider any treaties during the lame duck session.
Steve Clemons reacts angrily to a letter from ten incoming Republican Senators to Harry Reid imploring, “Out of respect for our states’ voters, we believe it would be improper for the Senate to consider the New START Treaty or any other treaty in a lame duck session prior to January 3, 2011.”
Steve correctly notes that the sitting Senators “have ALL the powers embedded in their positions until 12 noon, January 3rd.” But he says that the efforts of the Senators-elect to “impose [their] will beforehand are extralegal, irresponsible, and unconstitutional.”
Nonsense. They’re merely grandstanding in the finest traditions of our Republic. Their request is perfectly constitutional: They’re citizens petitioning their government for redress of grievances and exercising their rights to free speech under the 1st Amendment.
Nor is there anything “extralegal” about it. Steve says that they’re “engaged in lobbying that would impose illegal burdens on incumbent elected representatives violating the word and spirit of the United States Constitution.” But they’re not asserting a legal principle or exercising any power whatsoever other than that of moral suasion. They’re saying, in essence, that the views of the Democrats have been repudiated and that it wouldn’t be kosher to defy the will of the people by ramming unpopular legislation through during the lame duck session. Naturally, Reid will think otherwise.
Nor is there anything “irresponsible” here. I happen to support the START Treaty, having called its ratification a no-brainer from day 1. But passing it is not so pressing that it needs to be rushed through in the next six weeks. And there’s an argument to be made that, to the extent delaying until the new Congress is seated dooms passage, that’s the will of the American people.*
As to the larger question of what’s kosher during lame duck sessions, there’s no good answer. Steve’s quite right that presidents and Congress have their full legal authority until the last second of the last day of their term. But it’s morally dubious to rush through unpopular legislation (or, in the case of presidents, pardons) after the people have spoken. My preference would be for politicians in these circumstances to limit themselves to uncontroversial matters and responses to genuine emergencies.
Of course, the ultimate answer is to eliminate lame duck sessions entirely. We don’t have a parliamentary system with its shadow cabinets, so we need some time for presidential transitions. But one month should be more than adequate to put a skeleton team in place. And there’s no reason for delay in seating a new Congress. Simply have a two-week recess after Election Day, during which the losers can clean out their offices, and seat the new crew in late November. Or, heck, keep it on January 3rd and just shut down the Congress during the last six weeks of the year on a biennial basis. They (and we) could use the rest. Again, they could always be called into session in a legitimate emergency.
UPDATE: Daniel Larison makes a more persuasive case against the request.
The treaty was brought up this year, and voted out of committee this year. The Senators serving in this session were duly elected to serve a full six years. By calling for them to delay consideration of an important treaty, these new Senators are not only starting off their Senate careers by making a terrible mistake and effectively aiding in the defeat of that treaty, but they are trying to prevent their constituents’ current representatives in Congress from doing their jobs. Of course, they are banding together to delay nothing else in the lame-duck session. The only thing they believe absolutely must not be considered in the lame-duck session is the one unobjectionable item that has near-universal support from the military, arms control experts, and former national security officials.
This is a pointed act of disrespect toward the voters of their respective states. Several of the new Senators don’t even represent new Republican seats. Kansas, New Hampshire, Florida, Kentucky, Ohio, and Missouri are all currently represented by Republicans, and the voters in those states can be represented just as well by their retiring Senators as they can be by the newly-elected ones next year.
This actually strikes me as correct. While there’s a strong argument to be made for not ramming through legislation that has been repudiated in an election in a lame duck session following it (as arguably happened with ObamaCare, for example) it’s not as if START played a significant role in the recent contest.
*It would be a weak argument in the particular — few Americans have much insight into the merits of nuclear treaties, a complicated and arcane subject — but a strong argument in general.