News : A consequential lame duck

Lame-Duck sessions such as the one that begins this week are so short and fraught with post-election fissures that Congress usually musters the will to complete only a single piece of business, if that.

A mix of a desperate outgoing majority, an obstinate incoming majority, a gathering of dejected losers and an eight-weeks-short window from Election Day to the start of the new Congress often sets the stage for bad feelings and gridlock.

Former Senate Majority Leader Trent Lott is no fan of the sessions that rarely feature an agenda of consequence.

“At best, they’re a waste of time, and at worst, they’re a mess,” says the Mississippi Republican, who participated in eight such sessions during his 34 years in the House and Senate. Lott acknowledges, however, that significant issues have been left for this year’s session.

“I can’t remember a time when there’s more left over than there’s left over right now,” he said.

Usually, the agendas of lame-duck sessions have little immediate impact on individual Americans. This year, failure to address the expiration of the 2001 and 2003 tax cuts by the end of December could shrink the paychecks of virtually all workers in January, thanks to higher withholding rates.

A host of additional expired or expiring tax policies could also wreak havoc on individuals’ and businesses’ financial plans. And the scheduled expiration of extended unemployment benefits could put out-of-work Americans further in the hole.

David E. Bonior, the former House Democratic whip from Michigan, says lame-duck sessions are often dispirited times, especially in a year such as this one, in which party control of the House has shifted to Republicans from Democrats and more than 100 defeated or retiring lawmakers — 14 in the Senate and at least 90 in the House — return to Washington one last time.

“There are often the recriminations and the what-ifs of the elections, some people are trying to figure out what they’re going to do with the next stages of their lives, and it’s the holiday season, so all of those things conspire to come up with a scenario for a not very productive session,” Bonior said.

But like Lott, he noted the imperative facing the lame-duck session that starts this week with organizational and party leadership matters, and turns to legislation in earnest the week after Thanksgiving.

“If you have to keep the government going and keep money in people’s pockets, as is the case with the tax issue, it’s definitely necessary,” Bonior said. “You’ve got to do it or people are going to see their taxes go up.”

Despite this year’s list of consequential leftover issues, history shows that such sessions, more often than not, flounder and produce no major legislation. In the 2008 lame-duck session, for example, the House passed a bill bailing out major automakers that then failed in the Senate.

In 2002, though, both chambers approved a bill creating the Homeland Security Department, and in 2000 they cleared an omnibus appropriations bill.

In 1998, the House reconvened to take up a difficult matter that many did not want to deal with — a characteristic of the kind of issue that gets pushed into post-election sessions: The chamber impeached President Bill Clinton and went home; the Senate didn’t bother to show up.

This month and next, the House will hold separate ethics trials of New York Democrat Charles B. Rangel and California Democrat Maxine Waters.

The 1994 lame-duck session, following the Republican takeover of the House, allowed passage of a single bill — approving global agreement that created the World Trade Organization — only because Clinton requested it and most Republicans supported it.

That year, all the annual appropriations bills had been signed into law by the end of September.

This year, Congress has not sent President Obama a single appropriations bill, and atop that it punted trillions of dollars of tax policy decisions into the session starting this week. Lawmakers also left undone a measure to renew defense programs that has passed each of the last 48 years, a new nuclear arms agreement with Russia, and a variety of second-tier measures such as food safety and child nutrition proposals with bipartisan support.

Congressional leaders have also promised a vote on a set of recommendations for reducing burgeoning budget deficits and the national debt that a presidential commission may make by the beginning of December.

Minnesota Democratic Sen. Amy Klobuchar has nicknamed the coming session the “mother of all lame ducks” because so much consequential work awaits resolution.

Most of the Democrats’ to-do list — legislating an end to a ban on openly gay servicemembers in the military; securing a path to citizenship for millions of illegal immigrants’ children; approving the New START agreement with Russia; adopting a range of incentives to reduce the nation’s dependence on oil; raising taxes on the wealthy; extending benefits for the unemployed; securing higher funding for a raft of domestic programs; beefing up sex discrimination laws; and tightening campaign finance restrictions — was put together before the midterm elections gave Republicans a majority in the House and delivered Democrats heavy losses in the Senate, although not enough to lose control.

Look to Republicans to try to block Democrats’ efforts to use the final days of their House majority and their Senate margin to enact anything at all, save a measure keeping the government running at last year’s spending levels and another extending current tax rates for all taxpayers.

Procrastination and Promises

Post-election sessions have been reviled ever since defeated President John Adams and the ousted Federalist majority in Congress spent the winter following the 1800 election passing legislation and approving appointments opposed by the incoming Democratic-Republican majority and President Thomas Jefferson.

At that time, each two-year congressional term began in March and included two annual sessions that started in December of each year. That meant that the entire second session of each Congress was a lame-duck session because it began the month after the November elections for the subsequent Congress.

In the November 1922 elections, the House and Senate Republican majorities lost seats in part because of public opposition to a bill that would have allowed the government to subsidize private firms’ purchase of government-owned ships.

Despite the election losses, GOP President Warren Harding called Congress back for a lame-duck session to pass the bill anyway. Ninety-four lame-duck members of the House helped Harding pass the ship subsidy bill, but a filibuster killed it in the Senate.

The ship subsidy controversy ignited a movement to pass a “lame-duck amendment” to the Constitution to fast forward the start of each congressional term, as well as each annual session, to January. In 1933, the 20th amendment was ratified.

Reformers expected that lame-duck sessions would end except in rare circumstances because the window between the elections and the start of the new Congress had been closed to two months.

“The rationale, quite simply, was that they were undemocratic,” said John Copeland Nagle, a law professor at the University of Notre Dame who has researched the amendment’s history. After ratification, “they couldn’t imagine that Congress would come back into session after the election” given the short window and the holiday season.

Over the next 60 years, 10 lame-duck sessions were held, and only the later sessions in 1970, 1974, 1980 and 1982 involved extensive legislating. But from 1994 on, a lame-duck session has been held every two years except in 1996; this year’s marks the seventh in a row.

Election-year procrastination and cowardice appear to be the main catalysts — with both parties putting off tough votes on appropriations bills and other controversial matters as elections draw closer.

“Usually, they are occurring today because of overly risk-averse political leaders,” said Jeffery A. Jenkins, a political scientist at the University of Virginia who has extensively studied lame-duck sessions. “It might just mean that leaders aren’t willing to take the chance on holding tough votes in the pre-election period. Why put members on the spot if they don’t have to do it?”

Democrats this year punted not only on appropriations bills — with only two making it through the House and none reaching the Senate floor — but they also abandoned a pre-election effort to extend President George W. Bush’s tax cuts, which are set to expire at the end of the year, for people making less than $250,000.

The move would have allowed tax rates to rise for people above that level — an outcome deemed politically risky by Democratic lawmakers facing downbeat voters in November.

Senate Democrats debated up until the final days of the pre-election session whether to hold the vote but ultimately decided to wait.

“Some of my colleagues who are in cycle would just as soon have the opportunity to vote after the elections are over rather than do that now,” Democratic Sen. Thomas R. Carper of Delaware said in September. “I want to be understanding with them, so I yield to them in making those decisions.”

As legislative action on a wide variety of fronts ground to a halt over the summer, White House officials, Senate Majority Leader Harry Reid of Nevada, House Speaker Nancy Pelosi of California and various other Democratic lawmakers began promising their frustrated supporters action on stalled legislation in the lame duck, even though it was clear the election was not going to go their way.

Republicans ratcheted up their opposition to a crowded lame-duck agenda the more that Democrats added to it. Georgia Republican Tom Price, head of the conservative House Republican Study Committee, offered a resolution to block a lame-duck session in August and again in September. Both times the resolution fell on mostly party-line votes.

On Election Day, House Democrats lost at least 60 seats and their majority, while Senate Democrats lost six seats while holding on to a 53-47 majority.

Price said those results only underscore the case for a lame-duck session that deals only with “must pass” unfinished business on appropriations, tax rates and Medicare payment rates for doctors.

“When there is a significant vote of the people which changes leadership, it is irresponsible for the outgoing leadership to press forward with public policy matters that are at odds with the concerns, wishes and desires of the American people,” he said.

But until the new Congress is sworn in on Jan. 5, Democrats still control a majority in the House. Conservatives worry that defeated Democrats from swing districts will feel free to vote for liberal proposals because they do not have to face voters again.

Congressional scholars such as Jenkins and Nagle have a name for that behavior: “shirking.” One study found outgoing Republican lawmakers were likely to vote for more impeachment counts against Clinton in the 1998 lame-duck session than fellow Republicans who had been re-elected.

Lawrence Rothenberg, a University of Rochester political scientist and one of the authors of the study, said defeated Republicans felt freer to vote in line with their ideological preferences than colleagues who had faced voters in the midterm elections, who did not seem to support impeachment.

By extension, he said, conservative Democrats who lost this year may be inclined to “shirk” their constituents’ wishes and back the liberal position on the expiration of tax cuts for the wealthy.

Shirking and Punting

Not all scholars agree that shirking is common in lame-duck sessions.

“The biggest issue tends to be participatory shirking: getting retirees and election losers to show up and vote,” Jenkins said.

In the 2008 session, a dozen senators and two dozen House members didn’t show up for December votes on the automaker bailout.

“On the whole, there’s little systematic evidence of shirking in lame-duck sessions, both pre- and post-20th Amendment. And when you find some evidence of shirking, it’s relatively minor in magnitude.”

Conservatives worry just as much about retiring Republicans’ voting plans as they do about Democrats’. Phil Kerpen, vice president for policy at the conservative Americans for Prosperity, said retiring Republican senators could provide filibuster-breaking votes for a trillion-dollar omnibus appropriations package and even for a package of debt reduction recommendations and tax increases that might emerge from the president’s fiscal commission.

Five departing Senate Republicans are appropriators: Robert F. Bennett of Utah, Christopher S. Bond of Missouri, Sam Brownback of Kansas, Judd Gregg of New Hampshire and George V. Voinovich of Ohio. Reid has said he expects Democrats to cut overall spending in appropriations legislation to the levels favored by Republican appropriators, a move that would clear the way for a deal.

Gregg is a member of the president’s fiscal commission, and Voinovich is a likely supporter of any recommendations it would issue. A draft proposal issued by the commission’s co-chairmen last week would seek some $4 trillion in deficit reduction by cutting billions of dollars from future appropriations bills and entitlement programs and raising some taxes.

If a similar proposal reaches the Senate and House floors along with a trillion-dollar omnibus bill and a decision on the $4 trillion potential cost of permanent extensions of the tax cuts, the budgetary impact of this lame duck will be unprecedented.

The 20th Amendment, however, doesn’t provide much time for all of that. Congress this week will be largely consumed by leadership elections and organizing meetings.

Senate Democrats and Republicans plan to hold such meetings Nov. 16, and the two House caucuses are expected to follow suit over the following two days. Congressional leaders aren’t even scheduled to sit down with Obama to hash out their lame-duck legislative plans until Nov. 18, a day before both chambers plan to adjourn for the Thanksgiving holiday.

That means the lame-duck session won’t really begin until the chambers reconvene Nov. 29. With the Christmas and New Year’s holidays the last two weeks of December, three weeks is the practical limit for the session, although House Democrats have endorsed wrapping up by Dec. 3.

It would be hard to find a lawmaker excited about spending another Christmas Eve in the Capitol, as the Senate did last year to pass its version of the health care overhaul.

Senate Majority Whip Richard J. Durbin of Illinois began lowering expectations for lame-duck productivity in September, when he argued that appropriations, the tax cuts and the New START agreement could easily consume the agenda. “Those are major undertakings,” he said.

Asked if “Jingle Bells” will be playing in the background as Congress completes his work, Durbin said: “I hope we get done long before Santa arrives.”

And Senate conservatives are practiced in the art of blowing up lame-duck sessions. Jim DeMint of South Carolina, head of the conservative Steering Committee, takes credit for undoing his own leaders’ plans to pass appropriations bills in the final days of Republicans’ previous Senate majority during the 2006 lame-duck session.

DeMint objected to procedural motions to move ahead on appropriations bills, and Senate leaders eventually gave up and kicked final decisions on spending into 2007.

DeMint says a continuing resolution keeping the government running at last year’s levels and an extension of current tax rates should be the only orders of business for this year’s lame-duck. He is opposed to bringing up the treaty with Russia and, like many House Republicans, is resistant to voting on any recommendations from the fiscal commission.

“There’s no way we can address hopefully some substantive suggestions in the chaos of the lame-duck session,” DeMint said. “This should be done with the congressmen and senators who have just been elected” when the 112th Congress convenes in January.

Whether this lame-duck session satisfies liberals or conservatives, post-election gatherings every other year seem to have become a permanent fixture of life in Washington. “The attitude now is, ‘Nah, we’ll do it later,’ ” Lott said in explaining the phenomenon.

Certainly, the huge agenda for this lame-duck session would shock the lawmakers who voted for the 20th Amendment. “It’s completely at odds with what everyone in Congress was saying just 80 years ago,” Nagle said.

If lawmakers do run out of time and key decisions are punted to 2011, taxpayers eyeing their withholding levels may need to brace for another eight weeks of uncertainty. Bonior noted that lame-duck sessions are usually followed by a month of organizing and settling in during the start of the new Congress.

“They don’t get anything of substance done until February,” he said, “and oftentimes until mid- or late February.”

-- Brian Friel, CQ Staff

This story first appeared in CQ Weekly. Request a free trial here.

 

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