You are using an outdated browser.
Please upgrade your browser
and improve your visit to our site.
Skip Navigation

The Lame-Duck Session

Myth and reality.

Democrats didn't get much done during the last session of Congress, instead opting to put off big votes until after the election. 

Republicans responded by freaking out, demonizing the lame-duck session as zero-hour, when Democrats would have a free hand to pass their agenda without the brake of electoral accountability. This article, which originally ran on September 20, 2010, explains how that battle willand will notplay out.

Congress is back, and one thing is obvious: There is no way they can complete the amount of work they have left before the November election. They still need to pass most of the spending bills for a fiscal year that starts in less than three weeks. On top of that, they must deal with energy; the small business tax-incentive plan; the new Obama “don’t call it a stimulus” stimulus package, which includes business investment tax cuts; child nutrition and food safety; the plan to aid stricken 9/11 workers; the START treaty; and the Big Enchilada: expiration of the Bush tax cuts. With Democrats determined to get on the campaign trail ASAP and the GOP still in obstruction mode, only a fraction of these tasks will actually be accomplished. So we're likely to end up with a dreaded lame-duck session.

Republicans have already been agitating against such a session for months. Back in August, Congressman Tom Price of Georgia, the chairman of the conservative Republican Study Committee, forced a vote on a resolution to block passage of any controversial policy proposals during a lame duck. He warned against secret Democratic plans to use the session to pass card-check, an energy tax, and a slew of big government programs. (The resolution failed on a largely party-line vote.)

Similar concerns moved Senator Mike Johanns of Nebraska to offer an amendment to the small business bill that would prevent Democrats from adding cap-and-trade provisions during a lame duck session. “The plan to do cap and trade in a lame duck is premised on senators and House members being free and liberated from the tethers of the American people," Johanns explained. "That’s extraordinary, and it’s deeply troubling.” The same fears animate conservative bloggers like John Fund of the Wall Street Journal and Marc Theissen of the Washington Post, who have fulminated against the Democrats' sneaky, illegitimate, and dangerous plans to use the back door of a lame-duck session to achieve goals they could not gain in the regular process.

But hold on: Are any of these criticisms accurate? Would a lame-duck session free up lawmakers to vote in ways they would not otherwise? Would President Obama find it easier to bribe losing lawmakers with jobs in his administration, as conservative bloggers have intimated, in order to secure votes on issues like card-check and cap-and-trade? More broadly, would such a session be unprecedented, or at least highly unusual, and utterly illegitimate if done after voters have spoken and taken a different turn from the status quo?

Actually, it turns out these concerns are almost completely unfounded. If lame-duck sessions freed up lawmakers to vote differently than they otherwise would have, for instance, we would see radically different behavior from legislators after they announce their retirements (since from that point on, they are freed from those pesky "tethers"). In fact, there are no discernable differences in voting patterns for members of Congress after they announce they are leaving. And it would be very difficult for Obama to bribe legislators with executive branch appointments: Since the overwhelming mass of attractive and available executive posts are Senate confirmable, and since Republicans even now can filibuster and block confirmations, that concern is a real conspiratorial stretch.

On the broader point about lame duck sessions, here is the reality: Lame duck sessions are commonplace, with 17 having been held from 1940 through 2008—or one after every two elections. To be sure, some were pro forma and accomplished little; others were targeted on a single issue or action. But a number were quite productive—and that includes lame duck sessions after the 1974 and 1982 elections, before swollen groups of Democrats were sworn in to compete with Republican presidents Gerald Ford and Ronald Reagan, and after the 1994 elections, before Republicans took their first majority in the House in 40 years and simultaneously took back the Senate.

The lame-duck session of the Ninety-Third Congress, after the Watergate election, approved the nomination of Nelson Rockefeller to be vice president, gave the president broad trade-negotiating authority, passed a continuing resolution to substitute for several appropriations bills that had not passed, established federal energy research and development policy, and enacted, over the vetoes of President Ford, a vocational rehabilitation bill and amendments to the Freedom of Information Act. The lame duck after the 1982 election was acrimonious and partisan, but Congress managed to pass a number of delayed appropriations bills, an increase in the gasoline tax, and a pay raise for itself. The post-1994 election lame duck was focused on one thing, passage of a major trade bill to implement the General Agreement on Tariffs and Trade (GATT), done on a bipartisan basis. And we can add the lame-duck session after the 1998 elections, when House Republicans reconvened to impeach President Clinton.

The looming lame-duck session will be among the most interesting of the 17 since 1940. It is remotely possible that an energy bill could limp across the lame-duck finish line, but the odds of it including any serious carbon cap are slim to none. The same goes for a tough version of card-check or any grandiose big government spending plans. The START treaty, despite the endorsements of luminaries like George Shultz and Henry Kissinger, and the strong support of Richard Lugar, remains captive to the noisy opposition of the bedrock right; if the 67 votes are there for it, it will be because Democrats and Republicans struck a deal that brought broad, bipartisan support. Like the majority of previous lame ducks, spending bills will be high on the agenda, but even higher will be the Bush tax cuts—without any action in the session, they will all expire before the new Congress convenes, including cuts for rich and non-rich alike, while also returning the estate tax to its draconian pre-2001 levels, a $1 million exemption with a 55 percent top rate. This is where to look for fireworks: The battle over the tax cuts could provide the most fascinating example of high-stakes endgame negotiations in memory. The rest of the lame duck? Not revolutionary, not conspiratorial, not anti-democratic—just more of the same, like its many predecessors.

 Norman Ornstein is a fellow at the American Enterprise Institute and the author, in 2006, of The Broken Branch: How Congress Is Failing America and How to Get It Back on Trackwith Thomas E. Mann.

For more TNR, become a fan on Facebook and follow us on Twitter.