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

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.

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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. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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