Is the lame-duck Congress constitutional?

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By Bruce Ackerman
Friday, November 12, 2010

During the darkest days of the Depression, Time magazine spied a ray of light: Congress passed the 20th Amendment, which "promised to eliminate the legislative influence of Senators & Representatives whose constituencies have already repudiated them."

This was a big deal in 1932. The new amendment culminated a decade-long Progressive campaign against lame-duck sessions, and it rapidly gained the support of three-fourths of the states.

Why, then, is the lame-duck Congress coming to Washington on Monday? Because of a dispute between the House and Senate over the text of the amendment.

Then-House Speaker Nicholas Longworth (R-Ohio) favored a direct approach. His proposal, passed by the House, would have imposed a cutoff date on the congressional session, ending it before the November elections, and making lame-duck meetings a legal impossibility. But Nebraska Sen. George Norris, who had spearheaded the amendment campaign, was skeptical: Once senators knew that Congress had to leave town by a fixed date, they would launch last-minute filibusters to force their special-interest riders onto "must-pass" legislation.

Norris's realistic view carried the day. The final draft didn't specify a pre-election cutoff date but gave Congress a brief post-election existence. It required Congress to expire on Jan. 3, providing it with a seven-week lease on life. This was in sharp contrast with the 17 post-election weeks that had been available for lame-duck activity.

This cutback was decisive, according to such sponsors as Rep. Emanuel Celler (D-N.Y.). He thought it "inconceivable" that lame ducks would return to Washington for seven weeks. Given the Thanksgiving and Christmas holidays, as well as the era's railroad timetables, Celler's claim was never seriously challenged. Norris gave the same assurance to the Senate and the public at large.

The Chicago Tribune explained that "the defeated legislator has only about seven weeks to hold onto his job and except in extraordinary cases Congress will not be in session during this time."

Congress initially fulfilled these expectations. Even the crises of the Depression did not seem "extraordinary" enough to justify lame-duck sessions. Only the approach of World War II changed things. Lawmakers refused to take their traditional break for electioneering in 1940, meeting regularly through mid-October. After the election, Congress continued on a lame-duck basis, though it didn't pass major initiatives.

This wartime practice lapsed in 1946, but the Korean War gave it new life in 1950. With Chinese troops invading Korea, the old Congress stayed in session through the new year. Arthur Krock of the New York Times explained that the "tensions which beset the world and the United States" have regularly "brought dying Congresses back into session."

This emergency rationale continues to be valid: If terrorists attack after Election Day, it's appropriate for a lame-duck session to consider the need for emergency legislation.

But there's no need for a lame-duck Congress to meet when it comes to less-pressing matters. Here the old Progressive reasons motivating the 20th Amendment still apply with full force. It is utterly undemocratic for repudiated representatives to legislate in the name of the American people. Worse, the prospect of a lame-duck session encourages sitting politicians to defer big issues till after Election Day and thereby avoid scrutiny by the voters.

These basic principles of the 20th Amendment have been forgotten. After 1954, there was a 16-year interlude in which lame-duck sessions were unknown, but they reemerged on four occasions during the 22 years between 1970 and 1992 - without any emergency justification. Since 1994, lame-duck meetings have become routine. With a single exception, every Congress has returned after the election.

They have been making very big decisions: passing NAFTA in 1994, impeaching President Clinton in 1998 and creating the Department of Homeland Security in 2002. These large initiatives serve as precedents for the coming lame-duck consideration of such weighty matters as permanent tax relief and the New START arms treaty with Russia.

Given the political momentum behind the current session, it's too late to call the whole thing off. But it's not too late for Congress to take longer-term measures. Progressives shouldn't be obliged to launch another constitutional campaign for a new amendment. Congress should clean its own house. It should enact legislation prohibiting lame-duck sessions except in national security emergencies.

Bruce Ackerman is a professor of law at Yale and the author most recently of "The Decline and Fall of the American Republic."


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