Tuesday, December 11, 2018

"Lame Duck" Mischief

The scandalous assaults by some Republican state legislatures on democratic constitutional norms are serious business. It is worth noting, however, that they are possible in large part because of a particular peculiarity in our system - "lame duck" legislative sessions. Some states strictly limit the length of a legislative session - a relic of the older idea of part-time legislators who have full-time jobs in their communities. In such cases, "lame duck" sessions are rare, requiring the executive to summon a special session. The same would be the case with Congress if it completed its business on time and adjourned earlier in the year. Nowadays, of course, Congress has become so polarized and in such a state of permanent electoral campaign that it has become legislatively dysfunctional to the point that things that absolutely have to be done (e.g., spending bills) get kicked down the calendar to virtually the latest possible date, increasingly requiring a "lame duck" congressional session, such as is taking place now (accompanied by predictable Republican mischief such as pointlessly summoning former FBI Director Comey to testify yet again about Hilary Clinton's emails).

It was to minimize Congressional "lame duck" mischief that the 20th Amendment to the federal constitution was adopted in 1935. The original constitution had prescribed an annual meeting of Congress on the first Monday in December. The constitution itself, however, had gone into effect on March 4, 1789. So the terms of office for Senators and Representatives (as well as President and Vice President) were calculated to begin and end on March 4 in the odd-numbered year following elections the previous November. As a result, the newly elected Congress did not take office until March; but, unless for some reason a President called a special session, the new Congress did not actually meet until the following December, 13 months after election. Meanwhile, the old Congress met, as prescribed, for its second annual session in December after the election - an election in which some at least (and sometimes many) congressmen had been defeated for reelection. This "lame duck" session met until the morning of the following March 4. 

The 20th Amendment ended this bizarre system. It specified that 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. Its second section then provided 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.

So, since the 1930s we are no longer required have to have "lame duck" congressional sessions . We have them now, not by necessity, but by congressional choice. Meanwhile mishchief on a minor or major scale is increasingly threatened by such sessions - major mischief as we are witnessing in the state legislatures on Wisconsin and Michigan and as we famously saw in Congress when President Clinton was maliciously impeached in a "lame duck" session in December 1998.

Congress could, of course, get its house in order and complete its business in a more reasonable time-frame (i.e., ending before the November elections), thus making "lame duck" sessions rare. It could actually legislate such a time-table for itself (although we know from experience how unlikely Congress would be to remain faithful to its own "regular order"). 

In fact, forcing Congress to conduct its business in a timely manner (before the November elections) would be a great benefit. It would minimize the kind of post-election mischief we have become accustomed to and facilitate a far more logical - and more representative - system. In practice, however, the only way to force this on Congress would be to amend the constitution - either to require Congress to adjourn by, at the latest, November 1 or to advance the start of the new congressional terms to, let's say, December 1. Of course, amending the constitution is a challenge under the best of conditions, and these are not the best of conditions right now. So a solution through constitutional amendment remains highly unlikely, although depending on their different processes some states might be more successful in amending their own constitutions and preventing their own state legislatures from indulging in "lame duck" sessions..

The only realistic recourse at the federal level is public anger and public pressure (also not particularly likely) to demand an end to such "lame duck" sessions. Until and unless something like that happens, we shall continue to see this aberrant and bizarre system continue with all its potential for minor and major  mischief.

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