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.

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*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.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. ponce says:

    “They’re saying, in essence, that the views of the Democrats have been repudiated”

    Um, the will of the people is that the Democrats still control the Senate.

    Thank you Tea Party morons.

  2. rodney dill says:

    Don’t you mean refudiated?

  3. Franklin says:

    But it’s morally dubious to rush through unpopular legislation (or, in the case of presidents, pardons) after the people have spoken.

    This is true for the bums who have been voted out, but not necessarily for incumbents who are voluntarily retiring at the end of their term.

  4. mantis says:

    But it’s morally dubious to rush through unpopular legislation (or, in the case of presidents, pardons) after the people have spoken.

    The new START treaty is popular, to the extent that people understand it, and no one was elected running against this treaty. It’s good for the security of the US and our allies, and since we already know that the new House majority has no interest in letting anything the president wants pass, regardless of how it hurts the country, it makes perfect sense to try to pass it during the lame duck.

  5. James Joyner says:

    @ponce: Sure. But the elections did throw out a number of Democratic Senators.

    @Franklin: A different case, yes, although a party change is still a party change.

    @mantis: The House doesn’t ratify treaties, so they’re irrelevant to this particular issue.

  6. mantis says:

    The House doesn’t ratify treaties, so they’re irrelevant to this particular issue.

    Wow, I’m an idiot. Need some coffee or something. In any case, the same holds true for the Senate. No way enough Republicans will support it to get 2/3 approval.

  7. Patrick T. McGuire says:

    “But it’s morally dubious to rush through unpopular legislation (or, in the case of presidents, pardons) after the people have spoken.”

    Seems to me that this has become SOP for Congress in the last couple of years, with Obamacare being the best example.

  8. Fog says:

    James, I was wondering how you would spin Kyl’s START idiocy into some sort of “bad for Democrats” post. There is no legitimate reason to wait, since Kyl’s delay is simply a ploy to buy time to defeat the treaty. They’d rather torpedo START than give Obama a “victory.” If this isn’t what they’re trying to do, why wait? The stated reasons are disingenuous nonsense.
    The real message to our allies is that negotiating with Obama is useless, since Kyl and his crew will make sure it can’t be ratified. This isn’t about national security, it’s about embarrassing the President. I’d love to be proven wrong, but I’m pretty confident I’m not.

  9. James Joyner says:

    James, I was wondering how you would spin Kyl’s START idiocy into some sort of “bad for Democrats” post.

    Huh? I’m just addressing the question of lame duck sessions.

    Kyl’s delay is simply a ploy to buy time to defeat the treaty.

    Well . . yeah. Democrats did the same kind of thing after the 2006 and 2008 elections.

    The real message to our allies is that negotiating with Obama is useless, since Kyl and his crew will make sure it can’t be ratified.

    That’s inherent in the system. Presidents negotiate, Senators ratify. It’s been thus since 1789.

  10. wr says:

    I’m a little confused. Apparently the fact the Republicans have won a lot of seats gives them a mandate from the people that must be obeyed.

    But when the Democrats won the House, the Senate and the Presidency, I don’t recall a single Republican saying that they’d won a mandate, and now the Rs would have to follow the will of the people and do as their opponents commanded.

    Do mandates only work one way? Or is winning an election only the will of the people when Republicans win?

  11. James Joyner says:

    @wr:

    There’s no such thing as a mandate. People vote for a whole lot of reasons. That’s doubly true of Congressional races, where myriad factors go into every single contest.

    That doesn’t mean that winners can’t claim a mandate and use it as a talking point for leverage.

    Do Republicans acknowledge that there’s a Democratic mandate when they get shellacked? Not usually. Some did in 2006 and 2008, but most followed the standard ideological line of “we weren’t true enough to our core principles.”

  12. ponce says:

    “But the elections did throw out a number of Democratic Senators.”

    So?

    The Democrats will still hold a comfortable majority in the Senate when the next session of Congress begins.

    And let’s not get into what a tiny minority of Americans the Republican minority in the Senate represents.

  13. Fog says:

    “Well…yeah.”
    So you support START, and also support those trying to defeat it?

    “Democrats did the same kind of thing…”
    But…but…the mean Democrats did it, too. That’s a justification?

  14. JKB says:

    The Democrats will still hold a comfortable majority in the Senate when the next session of Congress begins.

    Will it really be all the comfortable? The Democrats didn’t seem all that at ease when they had 60 seats. Not to mention, 1/3 of the Senate just got a spanking, some less than others. Those who have later appointments will be taking that into account.

    There was not mandate in this last election, but there was a message: “We are watching and are willing to use rolling pin reform to fix this household.”

  15. James Joyner says:

    So you support START, and also support those trying to defeat it?

    The treaty isn’t exactly my top voting issue.

    But…but…the mean Democrats did it, too. That’s a justification?

    It’s an illustration that it’s a standard tack. The winners over-claim a mandate and use that to argue against the losers taking advantage of the lame duck session. Nothing new there.

    And, as I argue later in the piece, there’s something mildly unsettling about representatives who have been fired thumbing their noses at those voters for several more weeks. It’s a flaw in the system that ought be corrected — a holdover from a time when Congress was not a full time job and when travel was much harder and slower.

  16. mantis says:

    The Democrats didn’t seem all that at ease when they had 60 seats.

    When was that, exactly?

    Not to mention, 1/3 of the Senate just got a spanking, some less than others.

    Republicans took six seats from the Democrats. Last I check, six seats is not “1/3 of the Senate.”

    Those who have later appointments will be taking that into account.

    Later appointments? What are you talking about?

  17. Tlaloc says:

    we could just do away with lame duck sessions. There’s no reason we couldn’t have representatives and senators take office pretty much immediately after an election. The president is a slightly different matter since they have a much larger number of bureaucratic positions to fill upon coming into office.

  18. FairPlay says:

    So, basically, what they are saying is Congress is/should be out of work until January. I am trying to make some sense of this. The Congress that is in place now was voted in by a previous electorate…and they were voted in for a clearly defined term. So, what you are trying to do is shorten their terms. Stop thinking you are hearing Pavlov’s bell and wait your turn. Did they not tell you when your turn is in effect when you went to the orientation meetings? I want Congress to continue to work (work hard, in fact). They are on our tax dollars and are getting paid for their “shift”. Lame Duck does not mean outa business…or sit on your duff until the next group comes in.