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Lame-duck sessions are the worst legislative device ever conceived by Congress except, apparently, for the alternative. How else can one explain that these rump sessions have been held in nine of the past 10 Congresses, counting this one?
The alternative, of course, is for Congress to complete all its work before the elections and adjourn until the next Congress convenes in January. But that has proved increasingly difficult for Congresses prone to procrastinate.
Tied to this is Congress’ propensity to avoid tough votes that could be used against Members in their re-election campaigns. These votes can occur on amendments to routine appropriations and authorization measures as well as on new initiatives over which competing interests can tie Congress in knots (see the pending cybersecurity bill).
The reason lame-duck sessions have been disparaged and discouraged historically is that they are usually unproductive and always unpredictable: There’s no telling which lame-duck Members (those defeated or not seeking re-election) will show up and, if they do, how they will vote because they no longer owe fealty to party leaders or constituents. Moreover, there is a commonly held belief that outstanding issues should be put off for the next Congress and president who will be more responsive to the most recent electorate’s wishes.
Notwithstanding the disdain for lame-duck sessions, since 1935, when the constitutional amendment changing the beginning of sessions of Congress to Jan. 3 took effect, there have been 19 lame-duck sessions out of 39 Congresses (counting this one). Ten of those lame-duck sessions occurred during the first 58 years, 1935 to 1992, and the other nine occurred in just the past 20 years, 1993 to 2012.
Many factors contribute to the growing reliance on lame-duck sessions. Certainly Congress’ workload has increased markedly. While earlier lame-duck sessions were called to deal with crises or to complete action on a president’s agenda, more recent sessions have been convened primarily to deal with expiring authorizations and an incomplete appropriations process.
One might think that divided party governments (in which the same party does not control both chambers and the presidency) would produce more lame-duck sessions because there would be more interbranch policy differences causing more delays over politically sensitive issues. But the data reveal the opposite. During the 29 Congresses in the earlier period (1935 to 1992), there were six lame-duck sessions out of 15 Congresses under unified party government and just four out of 14 divided party government situations.
For the latter period (1993 to 2012), there were four lame-duck sessions during four unified party situations and five lame ducks during six divided party governments. (There was no lame-duck session in the Republican 104th Congress under Democratic President Bill Clinton.) The greater frequency of lame-duck sessions lately may be more related to the increasing polarization within Congress than to which party occupies the White House.
When the same party controls both branches, it is even more inclined to game the potential of a lame-duck session if the other party is about to take over at least one chamber in the next Congress. After the 2010 elections, for instance, in which Republicans regained control of the next House, the unified Democratic Congress under President Barack Obama convened a lame-duck session that was especially productive: It extended the Bush-era tax cuts, the payroll tax holiday and unemployment insurance; repealed the military’s “don’t ask, don’t tell” policy; and took final action on a food safety bill and a nuclear arms treaty.
Congress avoided one budgetary hang-up this year by enacting a six-month, governmentwide appropriations continuing resolution before the elections. However, it still faces a budgetary crisis of epic proportions in the lame-duck session — the confluence at the “fiscal cliff” of expiring tax provisions, across-the-board spending cuts (sequestration) and a debt default, the combined effects of which could hurl the country back into a recession.
While it is not realistic to expect Congress to enact a final grand budget bargain during the next month, it is realistic to expect it to make a substantial down payment and establish an enforceable framework for completing the deal early next year in return for putting off the drop-dead dates.
Yes, that would be kicking the can down the road once again. But road-running is far safer than cliff-diving. Consider it a highway to somewhere that would rely this time for its construction on the standing committees of jurisdiction, through a reconciliation-like process, instead of on a super committee powered by super gizmos that go kaput in the night.
In the 1950s, comedian Groucho Marx hosted the TV quiz show, “You Bet Your Life.” If one of the contestants said the secret word, a toy duck (resembling Groucho) would drop from the ceiling with a $100 bill. It will take more than secret words to transform this lame-duck session into a mighty duck bearing big bucks in savings. But sometimes small gains can avert greater pains down the road. That is probably the best that can be hoped for this year.
Don Wolfensberger is a senior scholar at the Woodrow Wilson Center, a resident scholar at the Bipartisan Policy Center and former staff director of the House Rules Committee.