Expectations for a Lame Duck Congress

Congress reconvenes today for the first time since the elections took place almost two weeks ago.  One would think that after receiving the election results, the losers would pack up their things and move out soon thereafter.  However, rather than getting Gordon Brown's transition to David Cameron at 10 Downing Street we get something akin to limbo.  Baron Hill, Russ Feingold and more than 70 other Democrats are still hanging around Capitol Hill, participating in committee hearings, voting on legislation and for the most part, continuing to practice business as usual.  Nonetheless, it's pretty safe to say that they are also surveying their offices and beginning to put things in boxes. After the sweeping/seismic/tidal wave election, the next two months present an interesting time in Congressional action.  How are Hill et. al. going to behave knowing that their tenure is rapidly drawing to a close?  What implications does this have on the issues that Nancy Pelosi and Harry Reid will consider?  And why the heck do we have a two month layover in the first place?

The following paragraphs are rather abstruse.  If you don't really care why we have a lame duck session of Congress, skip to the next section.

To take the last question first (and drawing heavily on Jenkins & Nokken's excellent 2008 JOP article), the lame duck session has its origins in a conflict between Article I of the Constitution, the 1872 Apportionment Act, and the 20th Amendment.  Article I, Section 4 of the Constitution stipulates that Congress is to meet at least once per year on the first Monday of December.  The time from this meeting until March 4 (when the Congressional session technically opens), was considered the short Congressional session.

The 1872 Apportionment Act established the 1st Tuesday following the 1st Monday in November as election day, and as a result, codified a nearly 4 month lame duck session from election day until the beginning of a new Congressional session.  The purpose of this 4 month transition period was to allow for the slow process of vote counting and to allow adequate time for the winning candidate to make travel and staffing arrangements.

By the mid 20th century, the time necessary to get one's affairs was shortened considerably, and many (Progressives in particular) felt that the lengthy lame duck session was being abused by outgoing members of Congress, who used the opportunity to shirk their electoral responsibilities.   In response, the 20th Amendment, ratified in 1933, did away with the required short Congressional session, moving the Congressional opening date to January 3rd.  As Bruce Ackerman wrote in an Op-Ed on Friday, the amendment  "Promised to eliminate the legislative influence of Senators & Representatives whose constituencies have already repudiated them."

While the amendment did away with the mandatory lame duck session, it nonetheless did not keep Congress from meeting at all following election day.  Rather, Congressional leaders still had the opportunity to call Congress into session prior to January 3rd for a number of reasons.

If you skipped ahead earlier, pick up reading here.

As Jenkins and Nokken note, the lame duck session presents an interesting opportunity to observe legislator behavior.  After all, the common things that constrain their behavior - threat of electoral sanction, party pressure - have been largely removed.

Jenkins and Nokken compare roll call behavior before and after the 2oth Amendment, and the differences are stark.  Prior to the 20th Amendment, and the end of the codified lame duck session,

"At the individual level, we find that exiting members moved further away from the median party position, a result of their "shaking off" the partisan constraint...[L]ikewise, we discovered that lame-duck sessions were characterized by lower levels of party pressure, as leaders were hampered by the glut of exiting members."

However, following the imposition of the 20th Amendment, the changes are far less impressive.

"Unlike the previous era we observed no significant changes in the proportion s of party pressure votes or roll rates from regular to lame-duck sessions. In effect, lame-duck sessions in the modern era are simply extensions of regular sessions.  [Emphasis added]."

So, how are Baron Hill, John Salazar, Russ Feingold and the rest going to behave for these next few weeks?  It's hard to say exactly.  But the evidence suggests that all the hand-wringing about how these rogue legislators are going to vote in the next several weeks is likely unnecessary.  For the most part, they are going to behave just like they did prior to the election.