When a Lame Duck Isn't Really Lame
When one conjures the image of a “lame duck,” they likely don’t envision a bird capable of covering much ground. But for the last 20 years in Washington, D.C., lame duck sessions of the U.S. House and Senate have been an essential part of the congressional calendar and have provided condensed periods of substantial, bipartisan legislative activity that have otherwise become a rarity in our politics.
At present, it appears that we may be headed for an active lame duck session again this year. Before explaining, some definitions.
A lame duck session of Congress occurs in an even-numbered year when either the House or Senate (or both) meet after election day and before members of the next Congress are sworn in on January 3 of the following year.
The meeting is called a lame duck session because it’s possible (and, this year, extremely likely) that it will include lawmakers who have failed in their bids for reelection, or who planned to retire anyway. These individuals are “lame”—they won’t be back in the new Congress, but they maintain their positions as sitting members of Congress and thus have voting rights until Jan. 2 of the following year. (In case you’re wondering, the term “lame duck” originated in Britain in the 18thCentury and applied to bankrupt businessmen, who were “like a game bird, injured by a shot.” In other words: their days were numbered.)
There are two primary reasons congressional leaders might call a lame duck session in any political scenario.
The first is legislative. If there are bills that are close the finish line or that, like annual spending legislation, must pass in order to keep the federal government functioning, Congress will meet after election day. The House and Senate also might stay in session after election day to prevent the president from killing legislation. Constitutionally, if the president vetoes a bill when Congress is in session, he or she must send it back to Congress so lawmakers can have a chance to vote to override the veto. If Congress has adjourned, however, the president doesn’t have to do anything. If he or she doesn’t sign a bill, it doesn’t become law. This maneuver is called a pocket veto.
The second reason is personnel-related. The Senate normally has the authority to approve or reject executive branch and judicial nominations, but the U.S. Constitution also allows the president to appoint someone to fill a vacancy until the end of the following year when the Senate is not in session. This maneuver is called a recess appointment, but if the Senate does not adjourn, the president cannot exercise this right.
The president also may call a lame duck session to have Congress consider timely legislation, but no president has used this power in the modern era.
Congressional leaders, though, have called 21 lame duck congresses since 1933, when the 20thamendment changed the dates of congressional sessions from March 4 to January 3, and on average these sessions have lasted about a month. According to the Congressional Research Service, Congress’ nonpartisan research bureau, between 1933 and 1998, lame ducks were sporadic, occurring just 12 times out the 32 congressional sessions during the period.
The House and Senate both stayed in session after the 2000 election and there’s been a lame duck Congress involving both chambers in every even-numbered year since . (The House held a lame duck session in 1998 without the Senate. The priority then wasn’t legislative—it was to consider articles of impeachment against President Bill Clinton.) In recent years, lame duck sessions have lengthened. In 2012, 2014, and 2016, lawmakers stayed in town for more than 50 calendar days.
History demonstrates that Congress gets a lot of work done during those long winter weeks. In 2016, lawmakers tackled appropriations, Iran sanctions, and major defense and health care legislation and the Senate approved 117 different nominations during its lame duck session. Two years earlier, the Senate confirmed 252 nominees, extended several expiring tax provisions, and passed legislation to prevent Social Security benefits from being accrued by former Nazis after Election Day but before the new Congress was sworn in. Other notable legislation and matters lawmakers considered or passed during lame duck Congresses include:
Repeal of Don’t Ask, Don’t Tell legislation (2010)
The post-recession auto bailout (2008)
General Agreement on Tariffs and Trade (GATT) (1994)
Nelson Rockefeller vice presidential nomination (post-Nixon resignation, 1974)
Censure of Sen. Joseph McCarthy (1954)
At this writing, the odds that the Senate will have to stay in session to continue deliberations on a Supreme Court nomination appear to be increasing by the day. Lawmakers also might consider funding for a border wall and a U.S.-Mexico trade pact. And while the rest of the agenda has yet to be written, it’s certain it will be informed by politics.
If Democrats wrest control of the Senate from the GOP, nominations could be the primary, if not sole, focus of a lame duck. Currently, the party in power needs only 50 votes to confirm a nominee. If Republicans lose the Senate, they’ll do all they can with their until-January majority to get as many individuals as possible confirmed, including a Supreme Court nominee.
The question is, will lame duck lawmakers go along? In the 28thepisode of the popular television show West Wing, the Bartlet White House pushed for a lame duck session to get a Comprehensive Nuclear Test Ban Treaty passed. The president’s party had lost its congressional majority in the election and administration officials wanted this one last matter settled before power shifted.
The treaty’s sponsor, though, had lost his reelection race. Out of respect for his constituents, he said he wouldn’t vote for his own bill. Will we see similar bouts of conscience this November and December? Given the headlines, it’s possible, but given the experience of our recent politics, it’s unlikely.