Routing a political dispute to the courts is the constitutional equivalent of appealing to one’s parents for relief from the bully on the block.
The ranks of those writing about the state of American governance have swelled recently as more people are alarmed by its dysfunction. Their growing corpus on the subject has facilitated a much-needed debate about how our politics is broken and what reforms are needed to fix it.
Still, Congress’s decision last week to delay action on some controversial issues, including a decision over whether to fund President Trump’s border wall, until after the November elections, has received little attention from the good-governance crowd. Republicans claimed that punting the issue to a lame duck session helps them fully fund the wall. They feared a divisive debate over issues like funding the border wall would have led to a government shutdown just weeks before voters go to the polls. According to Tom Cole, R-Okla., “It doesn’t make a lot of sense to shut down the government, and we’ll fight that fight when it comes, but this isn’t the time to have it.” Republicans believe that waiting until a lame-duck session to fund the wall increases their odds of maintaining their majorities in the House and Senate. And a lame-duck session preserves the opportunity to act in December should the Democrats instead prevail in November.
But intentionally waiting until a lame duck session to pass legislation, especially dealing with controversial issues, violates the spirit of the 20th Amendment and undermines representative government by making it harder, if not impossible, for the American people to hold their elected officials accountable for their votes.
The Constitution initially required that Congress must meet at least once a year on the first Monday in December unless a different date was set by law. And from 1789 to 1933, Congress’s official start date was March 4 of every odd-numbered year. However, in practice, its members didn’t begin regular business until the following December, 13 months after they were first elected. Members would then work through to the following summer at which point they would adjourn until after the elections. Consequently, Congress’s second session did not usually begin until after the members for the next Congress were chosen. In short, it was a lame duck.
Growing concerns about corruption and allegations of vote-buying during lame ducks sessions fueled calls for reform. In 1922, reformers alleged that President Harding purchased the votes to pass the controversial Ship Subsidy Bill during a lame duck session in the 67th Congress. The ensuing controversy led Senator George Norris, R-Neb., to propose moving the official start date of Congress from March 4 to early January to prevent such scenarios from occurring again in the future. Norris’s proposal was eventually approved as part of the 20th Amendment. Ratified in 1933, the amendment requires that each new Congress be convened on January 3 after an election.
The few weeks remaining between the election and the start of a Congress were deemed necessary to give new members time to get their affairs in order and settle in Washington. While Congress did not wholly disavow lame duck sessions after 1933, members resorted to them only rarely and almost always during wartime or in response to an emergency. Yet in recent years, lame-duck sessions have become a routine occurrence. For example, there have been 21 lame duck sessions since the Constitution was amended to eliminate the practice. Only 13 of those occurred before 2000. But every Congress since then has reconvened to conduct significant, yet regular, business after an election. Lame ducks have become a near-permanent feature of the congressional calendar, one that members use intentionally for making controversial decisions after their constituents vote.
This routinization of lame ducks devalues the role elections play in our democracy and makes it harder for voters to hold their elected officials accountable for the decisions they make during such sessions. Specifically, lame-duck sessions create an environment in which members are not seeking re-election, and who have already been replaced by their constituents, can vote for measures that, if signed into law, are legally binding on their former constituents. Yet voters are unable to influence those decisions because their members are no longer accountable to them.
Lame duck sessions also make it harder for voters to assign responsibility for policy outcomes to those members who will continue to serve in the new Congress. During such meetings, controversial legislation is typically crafted by party leaders behind closed doors and forced through the House and Senate at the last minute. This makes it almost impossible for voters to understand the role their representatives played in the process. Regardless, voters will not have the opportunity to hold those representatives who are running for reelection accountable for the decisions made during lame-duck sessions until two years later at the end of the next Congress.
For these reasons, those concerned about the state of American governance should be alarmed by the prospect of yet another lame-duck session. Instead of returning to the Capitol Hill after the people vote, members should complete their work before the election so that their constituents can reward, or punish, them as they see fit. And anything that Congress cannot finish before November should wait until January 3, when the 116th Congress will convene.