Minnesota Lawyer
“Democrats relinquishing the Senate have outlined an ambitious agenda for the lame-duck session,” reports the Boston Globe. The Democrats are “likely to have bold plans for the lame duck,” says NBC News. Lots and lots of business is evidently being packed into the brief window between the Nov. 4 election and Jan. 3, when the next Congress is sworn-in. That’s too bad. Lame-duck sessions, absent national emergency, are actually a very bad idea.
The constitutional gap between ballot and authority is an artifact of the logistics of a bygone age. The framers of the Constitution never seriously imagined the possibility that senators and representatives would be able to convene within days or even hours of the vote.
Nevertheless, the practice of lame-duck sessions is as old as the Republic. The most famous came when the defeated Federalists returned to Washington in December 1801, and faced what the legal scholar Bruce Ackerman, in his book “The Failure of the Founding Fathers,” calls “a condition of overwhelming temptation.” The lapse of time before the newly elected Republican Congress took office, writes Ackerman, offered the Federalists “a golden opportunity to abuse their political power before handing it over to their rivals.”
Thus was produced the Judiciary Act of 1801, known derisively as the Midnight Judges Act, creating new circuit court judgeships that President John Adams hastily filled in the weeks before Thomas Jefferson succeeded him. The controversy provided the springboard for the Supreme Court’s landmark decision in Marbury v. Madison.
“Lame duck” hasn’t always carried its contemporary meaning. In its original 18th-century usage, the phase was a derogatory reference to a bankrupt businessman. Its early use in politics was similar, suggesting a helplessness, a flailing about once gone from power. President Abraham Lincoln, recalling an outgoing senator who sought an appointed federal post, said: “I hate to have old friends like the senator go away. And another thing I usually find out is that a senator or representative out of business is a sort of lame duck. He has to be provided for.”
It’s too bad that the original understanding of the phrase has been corrupted. We no longer conceptualize those voted out of office as helpless. On the contrary. Committed partisans view a lame-duck session not as a constitutionally extraordinary event, but as an entitled opportunity for the defeated to enact as much of the agenda as possible before leaving the nation’s capital.
That’s too bad. The original understanding was healthier for our politics. The Constitution wasn’t meant to provide a space for votes on which the members would never face their constituents.
All of which leads me to “The Lame Duck Congress,” one of my favorite episodes of “The West Wing.” As the episode begins, the Democrats have taken a shellacking in the midterm elections. President Jed Bartlet is considering calling a lame-duck session of the Senate to ratify the comprehensive test ban treaty. His staff knows that the crucial vote will be cast by Sen. Tony Marino of Pennsylvania, a leading proponent of the treaty who has just lost his seat. Toby Ziegler, the White House communications director, is tasked with tracking him down, to be sure that Marino and the other votes he influences are on board with the idea of a lame-duck session.
Near the end of Act Three, the two men finally meet, and Marino drops a bombshell: If President Bartlet calls a lame-duck session, he will not vote to ratify. The following dialogue ensues:
MARINO: Toby, I’m a lame duck Senator. The people of Pennsylvania voted me out and Morgan Mitchell …
TOBY: Senator …
MARINO: I’m going to talk to Newberry about staying where he is, and stopping dominoes.
TOBY: Senator, there’s no reason why you can’t …
MARINO: They voted me out, Toby. Largely based on my support of a comprehensive Test Ban Treaty.
TOBY: Only because Mitchell painted another picture.
MARINO: Well, that’s not for me to say. And I’m going to choose not to assume that my constituents feel a certain way because they were duped.
TOBY: Senator, nobody expects … you know … you’re not expected to …
MARINO: Nobody expects, nobody expects. Toby, it seems to me that more and more we’ve come to expect less and less from each other. And I think that should change. I’m a senator for another 10 weeks, and I’m going to choose to respect these people and what they want. You call a lame-duck session now, and I’ve got to abstain.
The deftly written scene appeals to a principle of democracy often mooted nowadays but poorly understood. Winners like to say that elections have consequences. But the consequence isn’t — or shouldn’t be — “Now we can do what we want.” The principle should be, in the words of Gerald Ford (on quite a different subject) “Here the people rule.” The fictitious Sen. Marino understands that. The voters considered his position on the issue and chose the other guy. That, for Marino, is the end of the matter.
The story may well be based on actual events that occurred in 1932, after Rep. Ruth Bryan Owen, a Florida Democrat and a supporter of Prohibition, was defeated for re-election. Because the campaign had been contested largely on this one issue, she felt honor-bound, upon her return to Congress for the lame-duck session, to vote for repeal. She hadn’t changed her mind, she said, but she was voting the will of the constituents who had turned her out of office.
Like most questions involving honor, behavior of this sort likely seems unfashionable, even mysterious. But it’s useful from time to time for those on both sides pursuing ambitious agendas to remember who their bosses are.
Well, OK. Some of those defeated are likely to leave only the Capitol, not the capital, moving over to the K Street corridor of lobbyists and lawyers. The story for the episode, incidentally, was written by liberal firebrand Lawrence O’Donnell.
