The Not-so-Lame Duck Session

The dates of Congressional sessions since 1935 have been prescribed by the 20^th Amendment to the Constitution. If a session of Congress is held in the interval between the election of a new Congress in November, and the next Constitutionally defined next session in January, this Congress is often referred to as a ‘lame duck session’, in reference to those lawmakers who have lost their seats in November. Prior to the 20^th Amendment’s ratification, Article 1, Section 4 of the Constitution provided that one Congress would convene for four months in a short session, between December and March, after the constituents of states had elected the Congress that would succeed them (Adler): even after the public had shown their displeasure with a lawmaker, they would still be afforded the ability to enact laws, hardly the most democratic of systems.

There are two major camps of opinion regarding the role of elected representatives; one, delegation, espouses a role whereby a representative should do as the majority of his constituents wish, and the other views the lawmaker as a trustee, best equipped to act in the best interests of their constituents. (Hitt, Lecture September 2019). The possibility of a lame-duck session whilst perhaps abhorrent to those proponents of representation as delegation, does have its advantages. Firstly, with the Westminster system, there exists a period between the dismissal of one Parliament, and the introduction of the next, in which there is no legislature to oversee the executive branch’s actions; whereas, Congress can convene if required to, in a lame-duck session. To those who fall firmer on the concept of representatives as trustees, a lame-duck Congress could arguably benefit their constituency more, as those members set to leave their posts will be free from the pressures of seeking to appeal to their masses of voters, and may act in the way they see fit, in the best interests of their area. It is possible, however, that electoral accountability might be undermined by the convening of a lame-duck session, as constituents have no influence over that which their representative might do in this time. (Adler)

Lame-duck sessions are far from unproductive, with Pew research showing that over a third of the entirety of lawmaking done by the 113^th Congress was conducted after Congressional elections (Pew), and in 2001-02, the 107^th Congress was able to push through 83 ‘substantive’ laws, increasing security in the wake of the 9/11 attacks, and creating the Department of Homeland Security (Pew). It has been further argued that, in recent years, party leaders may have used the promise of lame-duck sessions to stop their members from having to take certain contentious political positions that might hurt their re-election prospects (Adler), such as those on appropriations bills or on policies the incoming Congress will not be likely to act in cases where control has shifted between the parties. A bipartisan solution to the budget was found in 1980 during the lame-duck session (Constitution Center), an obvious benefit of its existence being that compromise can be more easily struck, as outgoing members need not hold firm, and can leave office having made a constructive move for the nation.

The very existence of the lame-duck session is not one of necessity, as illustrated by parliamentary democracies the world over, however, their ability to be convened can serve to benefit the nation in many ways. Yes, accountability of representatives may be undermined, but it is Congress’ ability to act fast in response to crises and their ability to legislate as trustees that redeems this consequence of the Constitution, allowing it to not appear to undermine democratic processes.

NCC Staff, “How the 20th Amendment made lame-duck sessions less lame” January 23 2019, accessed 09/18/19 <https://constitutioncenter.org/blog/how-the-20th-amendment-made-lame-duck-sessions-less-lame/>

DeSilver, Drew, “In late spurt of activity, Congress avoids ‘least productive’ title” Pew Research Centre, 29 December 2014, accessed 09/18/19 <https://www.pewresearch.org/fact-tank/2014/12/29/in-late-spurt-of-activity-congress-avoids-least-productive-title/>

Adler, E. Scott, Jeffrey A. Jenkins, and Charles R. Shipan. 2019. The United States Congress. New York: Norton