Lame Ducks: A Long, Not So Honorable Tradition

Posted September 9, 2004 at 3:43pm

A Senate immobilized by filibusters. A House effectively directed by the president. The triumph of special interests over the common good. Lawmakers voting themselves ever-growing perks.

Sound familiar?

While critics might attribute the description to the 108th Congress, the situation also depicts the legislative process in even-numbered years for almost a century, when a quirk in the Constitution virtually ensured that every two years Congress would convene in a lame-duck session following the November elections.

So corrupting were these lame-duck meetings believed to be that reformers eventually sought to abolish the practice of lawmakers meeting after many had been booted from office. The resulting 20th Amendment was one of the most rapidly approved constitutional amendments ever submitted to the states.

But setting an earlier date for the beginning of Congressional terms didn’t eliminate the possibility of Congress meeting in a lame-duck session. It merely reduced their likelihood from near-biennial inevitability.

So it is with some irony that as Congress reconvenes after the August recess, talk of a post-election session to complete unfinished appropriations bills, among other proposals, abounds without much dread or protest.

In almost every instance since the beginning of the Republic, lame-duck sessions have been met with incredible frustration, spotty progress on key objectives and substantial opportunities for mischief. Yet historically, Congress seems oblivious to the drawbacks of lame-duck meetings. Only seven years after the 20th Amendment’s enactment did Congress again hold a lame-duck session. Thirteen more have been held since.

The post-election meeting in 1982 was particularly bitter. So incensed were many Members about having to return to finish 10 of 13 appropriations bills that they donned yellow duck lapel pins in protest. Some took naps in the cloakroom as votes were held at 3:15 a.m. The House gave its Members a pay raise. A seemingly endless Senate filibuster kept both chambers in session after the targeted adjournment of Dec. 13. Lawmakers weren’t sent home until two days before Christmas.

“Frankly, we all look like fools,” then-Rep. Leon Panetta (D-Calif.) opined at the time.

“We have accomplished precisely nothing of any value,” added Sen. Edward Kennedy (D-Mass.).

Then-Speaker Tip O’Neill (D-Mass.) swore it would never, ever happen again on his watch. And it didn’t. Congress didn’t hold another lame-duck session until the government shutdown of 1994. Since then, every Congress but one has met after Election Day.

And unless the House and Senate change course, the 108th Congress will do so again this year.

A Disparaging Term

The phrase “lame duck” is a British import, originating in the early days of the London stock market (known as Exchange Alley), where newly bankrupt brokers would “waddle out of the Alley.” It crossed the pond, as it were, just before the Civil War, and became a term for politically bankrupt politicians. A 1910 edition of The Nation magazine described defeated officeholders as “lame ducks in the sense that they have been winged, but hope to preen their plumage again.”

Initially, post-election sessions were less an indication of procrastination than a natural extension of the farming calendar and a result of the founders’ inability to predict when the Constitution would be ratified.

At the Philadelphia constitutional convention, the framers required Congress to meet annually on the first Monday in December — allowing enough time for what was then a formidable trip at the end of the growing season — unless a different day was appointed by law. But because they didn’t know how long it would take for the requisite number of states to ratify the document, the founders left it to the last Congress serving under the Articles of Confederation to determine when the new government would commence. In the summer of 1788, the outgoing Congress chose the first Wednesday in March of the following year for the terms of lawmakers and the president to begin.

Most states subsequently set the first Tuesday after the first Monday in November as federal Election Day. Under the calendar begun in 1789, lawmakers elected in even-numbered years would begin their terms the following March. But they didn’t actually report to the Capitol until early December, leaving 13 months between their elections and their first meeting.

But more significant than the delayed start date was the House and Senate’s biennial meeting after elections had been held for the following Congress. The second session — dubbed the “short session” because it commenced in December and ended when the next Congress was sworn in the following March — did not even begin until after lawmakers had faced the voters at the polls. The first, or “long session,” by contrast, had no necessary end date.

“The combination of starting date and constitutional requirements produced a government calendar that proved no hindrance at first but by the twentieth century created serious problems,” according to David Kyvig in “Explicit and Authentic Acts,” a book on amendments to the Constitution.

By the early 1900s, the second session regularly provided opportunities for mischief. “During the short session, pressure to complete actions before the term expired encouraged hasty, ill-considered adoption of bills,” Kyvig wrote. The short session also gave the minority party a huge incentive to employ delays and filibusters to defeat legislation or force compromise in order to sap the little time available to do anything else.

The short session also produced a rather peculiar circumstance for special elections. Because most states prohibited a candidate from appearing on more than one ballot simultaneously, “If a House seat became vacant during the two-year term, they had to actually have two candidates running to fill the vacancy,” Senate Associate Historian Don Richie explained. One would finish out the second session following the election, while the other would sit for the following Congress. “You had people running for terms that were essentially over before they began,” Richie added.

Reporter Horace Greeley was elected to fill a short-session vacancy from December 1848 to March 1849 and used his Membership to obtain access to House records. He then published a long list of lawmakers who overcharged the taxpayers on their travel vouchers.

The Congressional calendar’s most serious flaw, however, was that it allowed lawmakers to legislate after being repudiated at the ballot box. A lame-duck House could even select the president and vice president in a disputed presidential election — and did so in 1800, 1824 and 1876.

And with nothing to lose, departing lawmakers were often influenced by White House promises of cushy appointments, even Cabinet positions.

Speaking on the House floor in 1927, then-Rep. Emanuel Celler (D-N.Y.) lamented the “worn-out provision of our Constitution” that allowed lame ducks to continue representing their constituents, pointing out that the United States was unique among 14 “leading” countries of the world in its “hackneyed system.”

Lame ducks, Celler said, “are very tractable, very docile, and usually under the promise of a job will vote any way demanded of them,” he said. “Surely, their head is not in their work. They are disgruntled and dissatisfied, and their tempers are usually bad.”

A ‘Lame Duck’ for Agriculture

The lame-duck session following the 1922 election marked a low point. A merchant-marine construction proposal, commonly known as the ship subsidy bill, had been a deciding factor in Congressional races that fall. Members supportive of the program were handily defeated, and the new Congress was bitterly opposed to any subsidy legislation. President Warren Harding was nonetheless firmly committed to it, and defeated lawmakers hoped to curry favor with his administration by voting for the highly unpopular bill.

Incensed, Sen. Thaddeus Caraway (D-Ark.) introduced a concurrent resolution stipulating that no Member of the House or Senate “has the moral right to support or vote for any measure which the people by their votes have repudiated” and that “all Members defeated at the recent polls abstain from voting on any but routine legislation.” Even further, the resolution proposed that committee chairmen “not in sympathy with the people’s wishes expressed at the polls resign their chairmanships.”

Although it offered no binding solution, Caraway’s tone was revolutionary. While it was met with open laughter on the Senate floor — the chamber dismissively referred it to the Agriculture and Forestry Committee because it invoked waterfowl imagery — a progressive Republican from Nebraska happened to chair that panel, and he took it far more seriously than did his colleagues.

The chairman, Sen. George Norris, called the resolution up immediately, and the committee referred it to him as a subcommittee of one. After study, Norris determined that Caraway’s measure would unconstitutionally restrict elected Members. But instead of dropping the idea, he wrote a constitutional amendment to accomplish its intent.

The measure Norris drafted also allowed for the replacement of a president- or vice president-elect who died before inauguration. (Norris’ constitutional language initially provided for the abolition of the Electoral College, but he withdrew that provision after it became too controversial and distracting.)

The Senate promptly passed his amendment 63-6 in 1923. It would be 10 years, however, before it was sent to the states.

“No Congressional fight of protracted duration more clearly projected the difficulties of achieving sensible and necessary change in institutions of government than the struggle over the lame duck amendment,” Norris later wrote in his autobiography.

Norris believed there was no valid argument against his proposal. Indeed, principled objections were not what kept the resolution off the House floor for the better part of a decade. Rather, the House leadership drew an enormous amount of power from the short session and had no intention of abolishing it.

After the Senate approved the lame-duck amendment for the fourth time in January 1928, the House leadership agreed to at least discuss Norris’ proposal. The version that emerged from committee would have set the second session of each Congress from January to no later than May, thus eliminating the post-election meeting but preserving the short session in even-numbered years. But even that version, which was anathema to Norris’ vision, failed to meet the two-thirds threshold in the House. A House Republican told Norris that his leadership obtained enough “nay” votes to ensure its defeat before allowing debate.

In the next Congress, Speaker Nicholas Longworth (R-Ohio) held up referring Norris’ amendment to committee for almost a year. In 1931, the House finally adopted a lame-duck amendment, but again approved a version that would have preserved the short session in even-numbered years. A conference committee was unable to resolve the two chambers’ versions, and the measure died for a fifth time.

But the 1930 midterm elections that swept Longworth out of the Speakership and the Democrats into power in the House signaled a shift in the amendment’s chances. They weren’t able to exercise that power until December 1931 — a point that frustrated the new Democratic majority because it meant that President Herbert Hoover could avoid confronting the new Congress for most of the year. Four months after taking control of the chamber, the Democratic House approved Norris’ amendment, 336-56, in March 1932.

As finally passed, the 20th Amendment set Jan. 3 as the commencement of each Congressional session, unless another day was provided by law. Presidential terms would thenceforth begin Jan. 20.

Without prompting by Norris, nine states ratified his amendment in the first 30 days, and they were joined by eight more by the end of the year. Its final ratification in April 1933 marked the first time an amendment was unanimously approved on initial consideration.

The 20th Amendment came too late to save the country from what was perhaps the most excruciating lame-duck session ever held. As the Great Depression loomed, 81 House Members, primarily Republicans, along with Hoover, were thrown out of office in November 1932. But President-elect Franklin Delano Roosevelt wouldn’t take office until the following March, and neither could the new lawmakers. Filibusters in the Senate and lame-duck votes in the House nearly paralyzed Congress during the darkest months of the Great Depression, and the federal government seemed powerless to reverse the the country’s spiraling crisis.

Post-20th Amendment Lame Ducks

The grim memory of the Depression-era lame-duck session did little to deter such meetings thereafter. With war looming in Europe, Congress remained in session almost continuously from 1940 to 1942, albeit sometimes in pro-forma meetings. And the first distinct lame-duck session after ratification of the 20th Amendment occurred just two years later, as World War II continued to rage.

Lame-duck sessions recurred frequently in the postwar years before tapering off between 1955 and 1969, when none were held. They were then held only sporadically until 1994. With the exception of 1996, post-election sessions have been held every election year since.

“Periodically they have to come back because there is something left over they didn’t do,” Richie said. “Usually the leadership promises not to do it. But after a few years they do it again.”

Not all lame-duck sessions have been unproductive, however. Civil service reform was enacted in the 1880s in a lame-duck meeting, as were the “Superfund” bill to clean up toxic waste sites and a 1994 bill implementing a new General Agreement on Tariffs and Trade.

The same 1982 session that O’Neill dubbed such a disaster did finish four of the outstanding appropriations bills, although a continuing resolution was passed for the remainder of the fiscal 1983 measures. Congress also accomplished two goals that would have been virtually impossible before the elections: raising the gas tax by 5 cents, and repealing the cap on Senators’ outside income. House Members also voted themselves a retroactive pay raise. (Pay raises for the Congress that enacts them were later barred by the 27th Amendment, ratified in 1992.)

This year, Congress may put off raising the debt ceiling until after the election, when lawmakers will have an easier time casting votes on the politically sensitive issue.

Although he is nearly alone in his open protest of the likely lame-duck session, Sen. Trent Lott (R-Miss.) recently took to the floor to question the efficacy of meeting in November to finish 12 appropriations bills, as well as hearings to confirm Rep. Porter Goss (R-Fla.) to head the CIA, an overhaul of the nation’s intelligence agencies and their Congressional oversight, and extensions to popular tax cuts.

“If we can’t get this stuff done in the next month, we’re not going to get it done in the two weeks before Christmas,” Lott said recently.

History is certainly on the side of that assessment.