Consider for a moment the historical oddity of the lame-duck Congress. The United States holds elections every two years to change the composition of the legislative chambers – the House in full, and a third of the Senate – on the first Tuesday following the first Monday of November in even-numbered years.
After a suitable time for states to count ballots and verify the results, voters have essentially chosen a different Congress to represent them in budgetary and policy matters in Washington D.C. For several weeks, though, the previous Congress gets to pretend that nothing has changed, and that they still have legitimacy to make those decisions regardless of how the elections turned out.
Perhaps we need to consider repealing the 20th Amendment. The U.S. Constitution originally set the start of the Congressional session as “the first Monday in December” in Article I Section 4. Thanks to the travel challenges of the 18th century that could leave a year between an election and the next Congress, presidents didn’t get inaugurated until four months after an election, which allowed lame-duck presidents plenty of time to create mischief. John Adams exploited that option with a series of last-minute appointments that resulted in the landmark Marbury v Madison Supreme Court decision establishing the equal power of the judiciary.
Nevertheless, the text stood until 1933, when the states ratified the 20th Amendment to move the presidential inauguration from March to January, shortening the length of the transition at the White House between administrations. Congress and the states chose to fix the start of the next Congress near the same time. That schedule may still have been influenced by the time still needed for members to travel to Washington DC, before the era of mass transit had truly begun for much of the now-sprawling nation.
That’s not the case today, and it is long past time for the states and Congress to eliminate the time between an election and the next session of Congress. Watching this year’s version of the lame duck makes it plain that leaving the time open for repudiated majorities and shell-shocked presidents is an open invitation for mischief and mayhem.
First, Congress has once again left a budget to be settled after an election in what has become a routine process. Americans have grown weary of the unnecessary brinksmanship that resulted from the collapse of normal-order budgeting, which gives due consideration of separate appropriations measures that fund specific agencies for the entire fiscal year.
Instead of rationally funding the federal government in a normal annual budget process, Congress and the White House have grown accustomed to using the continuing-resolution process that allows politicians to delay substantive action and create artificial crises. They then use those crises in order to pass massive omnibus spending bills on an emergency basis, a process that make transparency almost impossible. Also, thanks to the delayed resolution of what should be a normal budget process, omnibus bills usually contain a number of designated “emergency” funding measures, a designation that allows Congress to bypass spending caps, such as the Ryan-Murray cap that this so-called “CRomnibus” bill will likely violate.
The existence of a lame-duck legislative session not only makes this possible, but also downright encourages it. Budgets involve taking difficult votes and making compromises to get a reasonable consensus in both chambers on legislative priorities.
Voters have the right to be able to pass judgment on those decisions; after all, that’s the entire basis of representative government. Increasingly, though, Congress after Congress not only ends up postponing those votes until after an election, but also actively plans to do so thanks to the two months the current Congress gets to hold power after voters have elected others in their place.
In this lame-duck session, the budget takes a back seat for sheer chutzpah to the Senate Intelligence Committee’s decision to issue a partisan report on CIA interrogations in the aftermath of 9/11. The committee has studied this issue for years – indeed, since shortly after it became an issue during the Bush administration.
The Democratic majority on the panel has had eight years under both George W. Bush and Barack Obama to investigate whether interrogations crossed over into torture, who gave the orders that could have triggered it, the truthfulness of representations of the CIA to elected officials who had oversight responsibilities for intelligence, and so on. These were and still are important questions that speak to our ability to effectively defend ourselves against terror networks while remaining under the rule of law.
Instead of dealing with this issue responsibly, outgoing committee chair Dianne Feinstein conducted an investigation that former committee member Bob Kerrey, a Democrat from Nebraska and a Senator until 2001, attacked in a USA Today essay over its “partisan nature.”
Feinstein pushed the minority Republicans on the panel out of the way early, Kerrey wrote, “when [Republicans] determined that their counterparts started out with the premise that the CIA was guilty and then worked to prove it.”
The most irresponsible action by the already-defeated Democratic majority, Kerrey concluded, was that Feinstein and her fellow Democrats did nothing to provide oversight to the agency its one-sided report maligns. “The worse consequence of a partisan report can be seen in this disturbing fact: It contains no recommendations,” Kerrey wrote. “Our intelligence personnel – who are once again on the front lines fighting the Islamic State – need recommended guidance from their board of governors: The U.S. Congress. Remarkably this report contains none.”
Why not? The purpose of this report isn’t as much to shine sunlight on CIA practices of the past but to drape an albatross over the neck of the incoming Republican majority. Feinstein’s report attempts to cut any relation between the intelligence gathering done by the CIA in that period and the oft-cited Obama achievement of the Osama bin Laden raid – even though current CIA Director John Brennan and his predecessors all insist that the program developed critical intelligence that led to saving perhaps thousands of lives later on. The outgoing majority wasn’t interested in solving problems, but merely shifting the responsibility for them off their own shoulders.
Nor was that the end of irresponsibility in Congress from the defeated majority. Another member of the panel, Senator Mark Udall, lost his re-election bid five weeks prior to taking to the floor to reveal classified material in open session. Had Udall done that after leaving Congress, he could have been prosecuted for it. Had Udall done that prior to the election, voters could have held him accountable – or perhaps rewarded him – for that action. Instead, we have a politician who specifically had his mandate taken from him nevertheless using all-but-expired authority to exploit illegitimately without any risk to himself, legal or political.
The 81-year experiment with lame duck Congresses has proven itself a failure, even more so than the previous four-month presidential lame duck periods that were shortened by six weeks in the 20th Amendment. It’s time to revert back to the original timing for Congressional sessions and make elected officials entirely accountable to voters.
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