It's Not Dead, It's Only Lame: John Boehner and the 20th Amendment

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In an episode of The West Wing, President Bartlett considered calling a special session of Congress between the off-year elections and the arrival of the new Congress.  His party had lost seats, jeopardizing Senate approval of a crucial arms-control treaty.

But one of the treaty's principal sponsors stops the plan cold: "I'm a lame duck Senator," the fictional Senator Merino says. "You call a lame duck session now, and I've got to abstain."

House Minority Leader John Boehner (R-OH) recently fretted that real Democrats might not be quite as noble. He demanded they pledge not to hold a lame-duck session after the November elections. "People have a right to know that Congress will respect their will, whatever it is," Boehner said.

Before we get to Boehner's constitutional point, let's savor the irony detected by Steve Benen of The Washington Monthly. In 1998, Republicans lost five House seats when they had expected to win 15 or so. The will of the voters was clear: forget impeaching Clinton.  Republicans, however, rejected pleas to wait for the new Congress to convene (most new members of either party would probably have voted no). The lame-duck House voted Articles of Impeachment.

Voting to impeach was Rep. John Boehner.

This illustrates what I call "the Boehner Rule"-- your lame ducks are evil; mine are noble. Over and over in American history, important decisions have been made by presidents and Congresses already repudiated by the voters. It's a perennial crisis of legitimacy. Like Boehner, most politicians like it fine when it helps their side win.

The Twentieth Amendment, which had been expected to fix it, hasn't solved the problem at all.

The Framers in Philadelphia were determined to require an annual meeting of Congress. (In England, Parliament couldn't meet without the King's approval.) The Convention included a provision requiring Congress to meet in December. (Madison wanted to set May as the date, but other delegates protested that everyone would be out planting crops then.) Congress could change the date by statute, but unless it did, the December session was required.

The Framers did not, however, set a date for the start of Congressional and presidential terms. How could they? No one knew when, or if, the new Constitution would go into effect. The next year, when ratifications came in, the old Confederation Congress decided it would take until March 1789 to get everything running, and passed a statute setting that as the start-date for the new government. (As it happened, Washington was too busy to be sworn in until April--dratted spring planting again!)

Once passed, the March date was unchangeable: the Constitution says that House members serve two years and Senators six, and no statute can shorten or lengthen the terms. So a strange pattern began. Elections were held in late fall. Immediately after the election, Congress convened--but because the new terms hadn't begun, it was the old Congress. The newly elected Congress wouldn't meet until the next December, 13 months after it was elected.

Congress could have changed this by statute, but the post-election session was so jolly--members didn't need to worry about the pesky voters. 

Lame-duck sessions take their name from an 18th century stock-market term for a broker who couldn't pay off his account. Beginning in 1800, they routinely rammed through favored partisan measures; worse, in 1800 and 1824, the old, repudiated House of Representatives chose the new President. Popular wrath at this spectacle of unaccountability finally boiled over when Warren Harding tried to pass a subsidy for American shipping lines. The voters hated the bill, but Harding called a lame-duck special session and tried to bull it through anyway. The bill failed; instead, Democratic senators produced the first draft of a "lame duck" amendment.

The Amendment finally got congressional approval in 1932. It was ratified by every single state legislature, and in only 10 months. Under its provisions, Congressional terms, and the annual session, begin on January 3. (The President's term begins 17 days later to give the new Congress the opportunity to choose a President if there's no electoral-vote majority.) The amendment's sponsors assured the public that lame duck sessions were a thing of the past.

Except they weren't: after election day, the old Congress still exists, and it can just come back into session. As constitutional scholar John Copeland Nagle of Notre Dame points out, many important laws have been passed by "lame duck" Congresses since 1933. The federal "superfund" law was passed in 1981 by a Democratic Congress that knew the new Republican Senate would block it. In 1994, Democrats lost control of both House and Senate; the old Congress promptly met and implemented the General Agreement on Tariffs and Trade.

What's the solution? To really abolish the "lame duck" session would require yet another constitutional amendment. Congress can't change the January 3 date for convening--that's now in the text. Congress could change the date of elections by statute--but that would push them into the holiday rush.  The only way to fix it would be an amendment requiring Congress to convene a week after the elections. That's the way most other countries run things.

There's no way to ban lame-duck sessions altogether, and we shouldn't. What if Pearl Harbor had happened on December 7, 1940, instead of 1941? Should the government have to wait a month to declare war on Japan? In a genuine crisis, even a lame duck impeachment might be proper. (Draw your own conclusions about Clinton's case.)

It would be nice, though, if Democrats and Republicans could agree that, except in emergencies, major bills (and, for that matter, coups d'état) should be held over for the new Congress, no matter which party favors them. A lame-duck Congress has not much more claim to represent the people than does the program committee of the San Diego Comic-Con.

But for now, the Boehner Rule sails on. Boehner's only remedy then would be a new rule: when a lame-duck Congress meets, just vote "no" on everything.

Wait: that's the Boehner Rule already, isn't it?

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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