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Lame-duck sessions supposed to be a thing of the past, historians say

By David A. Fahrenthold
Washington Post Staff Writer
Friday, December 17, 2010; 9:17 PM

Here's the funny thing about this month's lame-duck session of Congress, in which frantic lawmakers have pinballed from tax cuts to "don't ask, don't tell" to a nuclear weapons treaty:

It's not supposed to exist.

In 1933, historians say, the country ratified a constitutional amendment intended to kill off sessions like this - in which defeated legislators return to legislate. The headline in The Washington Post at the time was "Present Lame Duck Session Will Be Last."

But because of a hole in that amendment, modern Congresses have not only met as lame ducks but have used the post-election session to take some of their most memorable votes.

On Friday, President Obama signed a giant tax-cut bill that Congress approved this week. That follows the passage of child nutrition legislation this month. And Democratic leaders could repeal the law that bans gays from serving openly in the military as soon as Saturday, before they try to rewrite immigration rules and ratify a nuclear weapons treaty with Russia.

This year's session has "the most ambitious legislative agenda that's ever been pursued in a lame-duck session since the 20th Amendment," said John Copeland Nagle, a law professor at the University of Notre Dame and one of the obscure amendment's few scholars.

This lame-duck session, Nagle said, "is exactly what the 20th Amendment was designed to stop."

The session has created an odd atmosphere on Capitol Hill: There are few long-winded committee hearings, few VFW delegations to glad-hand. Instead, lawmakers are tackling one enormous issue after another, with very un-congressional efficiency.

On Thursday night, the House voted to approve an $858 billion plan to extend George W. Bush-era tax cuts and use other tax breaks to stimulate the economy. Among those voting were dozens of lawmakers who lost their bids for reelection last month.

Across the Capitol, through empty halls, Senate Democrats were bitterly disappointed that they couldn't pass a 1,924-page spending bill worth $1.2 trillion.

"Are we going to help people in America?" Senate Majority Leader Harry M. Reid (D-Nev.) asked plaintively on the Senate floor, after learning that GOP leaders had talked rank-and file Republicans out of voting for the bill. "Our . . . answer appears to be no."

But then Reid moved on to the remaining pieces of the Democrats' agenda. He announced that he would seek votes Saturday for the repeal of the "don't ask, don't tell" policy, which prohibits gays from serving openly in the military, and a bill that would overhaul parts of immigration law.

"We have got to move this along," Reid said.

All of this would be a surprise, historians say, to lawmakers from the 1930s. They thought they had finally stopped a congressional practice that had caused controversy since John Adams (Federalist-Mass.) was president.

The 20th Amendment

The trouble with lame-duck sessions began in 1801, when the outgoing Federalists used their last days in power to help appoint a bunch of judges. It flared up again in 1922, when President Warren Harding and the lame-duck Republicans tried to ram through unpopular legislation after their defeats.

Opponents said this was un-democratic: These sessions seemed to violate the ever-popular Washington rule that "elections have consequences." Finally, Congress passed - and the states ratified - the 20th Amendment.

Historians say lawmakers thought they were ending lame-duck Congresses forever.

"This amendment will free Congress of the dead hand of the so-called 'lame duck,' " Rep. Wilburn Cartwright (D-Okla.) said as it was debated in 1932.

But there was a problem. The amendment didn't actually say it would end lame-duck Congresses forever. Its text only moved Congress's end date from March back to early January (it also shifted the presidential inauguration from March to Jan. 20).

At that time, historians say, it was inconceivable that lawmakers would journey back to Washington to meet for a few weeks after Thanksgiving.

"The big mistake of the crafters of the 20th Amendment was that they didn't really anticipate airplane travel," said Bruce Ackerman, a Yale University law professor. "It takes a lot of time to go from a district in Texas by train to Washington, D.C. Who's going to schlep there?"

Still, for the next 47 years, the amendment seemed mostly to work as intended. There were some lame-duck sessions, often in wartime, but no grand legislative agendas.

Then, historians say, things started to change.

Fighting over the lame duck

In 1980, Democrats came back after losing the presidency and the Senate and passed major bills, including one that created the Superfund toxic-cleanup program.

Then, in 1998, Republicans returned after losing seats in the House and voted to impeach President Bill Clinton.

Ackerman criticized them at the time, saying the Republican actions went against the spirit of the 20th Amendment.

"At that time, of course, Republicans were saying, 'This is ridiculous!' " Ackerman said. This year, he said, he has been much more in demand: "Now, they're calling to see if I'd come down for press conferences."

This time around, it's Democrats defending their lame-duck session. Aides to top Democrats in Congress said their ambitious agenda was necessary because tax cuts and government-spending bills had imminent deadlines, and Republicans had blocked other agenda items earlier in the year.

"We wouldn't need to be doing all this in the lame duck if the Republicans had not obstructed and delayed everything that we had been trying to do," said Regan LaChapelle, a spokeswoman for Reid. "I don't see anything wrong with working for the American people to get things done."

Republicans have objected to the session's agenda. But - perhaps mindful of their own past use of lame-duck sessions - they haven't brought up the 20th Amendment often.

"It's within the rules of the Senate," said Don Stewart, a spokesman for Senate Minority Leader Mitch McConnell (R-Ky.).

One exception is former congressman Newt Gingrich (R-Ga.), the House speaker during the lame-duck session of 1998, who has criticized Democrats for their agenda in this one.

Republicans have mostly objected to the session because it threatened to infringe on their Christmas holiday, not the Constitution. Sen. Jon Kyl (R-Ariz.) accused Reid of disrespecting Christmas by pushing the lame-duck session into next week.

Reid, in response, essentially accused Republicans of whining.

All of this leaves scholars of the 20th Amendment wondering.

"There's no other amendment that is even remotely like that, [that] has failed to do what it was set out to do," Nagle said.

Okay, fine, he said, there was one: the 18th Amendment. Prohibition. But that one was repealed.

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