Balkinization: Our Undemocratic Constitution: The Lameduck Congress

Comments:

Not me. I agree on this one (as I do on the electoral college, term limits on the judiciary, and the composition of the Senate). The new Congress should begin no later than the first Monday in December.

# posted by

Mark Field : 3:47 PM

Yes. This interregnum used to be a chance to let the dust settle and prepare for the changing of the guard. As GWB (and Bush I and Carter and even Clinton) have or are demonstrating, it's also an opportunity for mischief (in various degrees of toxicity). The Founders, of course, did not anticipate partisan politics. They also did not anticipate illiberal tendencies that they assumed were normative and inviolate. Certainly, as soon as a vote is certified, representatives should assume office. A longer period (perhaps a month) for the executive transition seems warranted, which allows a smoother transition, and if congress already reflects its newly-elected composition, can serve to buffer executive malfeasance.

# posted by

Anonymous : 3:57 PM

What about moving election day to December? Nothing in the Constitution requires elections to be held on the first Tuesday following the first Monday in November. That would (1) give the old Congress an extra month to get things done before recessing for the election, (2) allow a month for transition, and (3) allow the new Congress to take office with the beginning of the new calendar year.

# posted by

Anonymous : 4:00 PM

"One doubts that the framers of that amendment pictured a political reality where lameduck congressional sessions"

I disagree. Given the transportation and communication realities of the day, it would be a long time before the new Congress would sit. This would lead to a 'lame duck' session that would have political implications shown 1800-1801.

I doubt this was somehow the first time something like that happened. Are we to believe that during the lag period that also took place in other cases, state or otherwise, this did not take place? I really doubt it. This includes the old lame ducks having political consequences.

Now, Mark Field very well might be right. The 20A updated things to the 20th Century. [March to January] December might very well be sound for the 21st. But, there always is going to be some lag time. A new presidential administration surely needs some.

It is good though that the professor underlines his bipartisan bona fides here. Hard as it is to believe, some reformists in this area (on both sides) actually have them.

# posted by

Joe : 4:02 PM

Awww sooo cute. BTW, even with lag time, perhaps something can be done so that the lingering members can't do much.

# posted by

Joe : 4:07 PM

I fully agree. Lameduck session is something weird. So it seems like there are two options: no sessions between elections and the change of seats or bringing the election and the switch closer together.

I don't see principled grounds for one or the other, so practical reasons can determine which one should be chosen.

In so far as the critique on "the usual band of critics" seems a bit petty. As far as I'm concerned, the response in the others threads seemed pretty constructive. I've you don't want critical comments, you should close down the possibility on your posts, although I would regret that.

# posted by

Anne : 4:15 PM

Perhaps I made a mistake in referring to "the usual band of critics." If so, I regret it, because I agree that most of the postings are in fact thoughtful and carry the conversation along. I suppose I'm referring to some of the responses on another blog site where several people did nothing more than "remind" me that "we're a republic, and not a democracy," as if that's a complete response.

I don't think one can eliminate the possibility of lameduck sessions (unless the new Congress literally takes office immediately), since there is also the possibility of a genuine emergency that compels Congress to meet even before the new members are sworn in. But, as with the filibuster, it would be far better if such sessions were reserved for such exigencies rather than becoming a regular part of the political system.

Incidentally, I accept the point that Bill Clinton, although not a formally "repudiated president" also did indeed make full use of his power over administrative agencies between November 2000-Jan. 2001. Inevitably, any full discussion of the legitimacy of doing that would require rehashing the 2000 election, which I assume no one really wants to do. But in the absence of giving Clinton some special legitimacy because of the circumstances of that election, I would agree that he should not have exercised his power as he did.

# posted by

Sandy Levinson : 6:09 PM

I really don't see why any hiatus is necessary - I'd go for a much more extreme option. In the UK we have elections one week and MPs start to be sworn in the next. Of course, they won't have an office or staff, but the argument is that you can't have people who have lost their democratic mandate still making decisions.

This extreme way of working might cause some problems over where you are given the greater scale of the country and the complexity of organising offices in the relevant district/ state. I'm not really qualified to judge, though, whether that would be a fatal impediment - would be interested to hear what you think.

# posted by

Anonymous : 6:32 PM

I agree with John Wilkes that, ideally, there would be no hiatus. My concession as to the possibility of lame-duck sessions presupposes an unamended Constitution. So the argument is that a "convention" should arise against lame-duck sessions making any decisions of great import (such as passing the GATT) unless exigency requires (as arguably was the case, inasmuch as I recall a Jan. 1, 1995 deadline, though I may be wrong).

So why isn't the Constitution amended in such a sensible way? The answer really isn't partisan attachment to the status quo, as might arguably be the ase with the electoral college (at least in the short run). Rather, it is that Congress isn't going to put this kind of "good government" issue on the top its agenda, given the press of other issues. This is why it would be a good idea if there were in fact an alternative to Congress as the proposer of amendments, even if one doesn't like the idea of a convention.

# posted by

Sandy Levinson : 9:03 PM

Another solution might be to have a rule that no legislation could pass in a lame duck session without a 2/3 vote of both houses. Yes, this is still the old Congress making decisions, but given perpetual low turnover, a 2/3 vote probably includes a majority of the new Congress, and at the very least represents a consensus of old lawmakers that would likely transcend parties.

Obviously, you could do this with a constitutional amendment, but you could also probably do it under the same mechanism that the Senate adopts precedents such as the filibuster, and whatever mechanism the House has that is similar (via the Rules Committee?)

# posted by

Anonymous : 3:24 AM

Why should we confine our skepticism of the lameduck congress to the period immediately before its removal? Why not, say, limit the powers of the body years in advance, knowing that they will be repudiated sooner or later, by giving them a very limited number of powers in their exclusive competence, and presuming that they will become as corrupt and absurd as all their predecessors? Why discriminate against lame ducks, when most of the atrocities in our history have been committed by vigorous ducks? What better check could possibly exist against idiotic legislation than security in the knowledge that it will be repealable in a few weeks?

# posted by

Anonymous : 4:34 AM

Professor Levinson: I suppose I'm referring to some of the responses on another blog site where several people did nothing more than "remind" me that "we're a republic, and not a democracy," as if that's a complete response.

I fear some of my notes to you have fallen in that category. I do not hold that it is a complete response, but it does seem a fair place to start: how much "pure" democracy do we want? How would we decide? What are the various criteria we could use to choose between a democracy and a republic?

I confess to having been raised on the notion that a democratically elected republic is a good effort at "the best of both worlds." I do not think it unfair to have the presumption rebutted rather than dismissed outright. And you do a wonderful job, in "Our Undemocratic Constitution" of explicating just such a rebuttal.

So, stipulate you have made your case, and it is agreed that the flaws you see in the Constitution are indeed flaws. Next comes the question of what would, in an ideal world, be better. And then, just as importantly, what is the chance that a new Constitutional Convention would yield anything approximating that ideal, or even something less flawed than what we have? What is the chance even that even absent partisan privilege and special interest and entrenched wealth that a consensus could be reached on just what the ideal would be. Could you and any two of your closest colleagues achieve such a consensus? How much less likely then that the nation could? And what evils would the Gingrich's and Roves impose on us while you and your compatriots wrangled over that ideal? It seems foolhardy in the extreme to put such items on the table for consideration in the current ideological climate, when the O'Reilly's and the Limbaughs continue to shout down all dissent. Surely there are better efforts into which we can put our energies?

# posted by

Robert Link : 8:31 PM

I like this blog. I started checking it frequently after reading
Scott Horton's remarks on 10/08/06: When Lawyers Are War Criminals. I'm no lawyer, and definitely not a constitutional scholar, but as John Wilkes has noted, in the UK, MPs get voted in one week and the new MPs start working the following week. After reading recently in the NYT about the mad rush for pork monies before this congress recesses, I'm really down on lameduck anything.

Question for you all? We've been reading just after the midterms how the Democratic Party committee leadership was chosen for the 110th Congress. How is that done? Is it voted on by all the Democratic members? What about the ones who lost and won't return in 2007. Do they get to choose? What about the newly elected representatives and Senators? Do they get to have a say in anything about the leadership for 2007's congress? Thanks in advance.

# posted by

JayV : 9:36 AM

We've been reading just after the midterms how the Democratic Party committee leadership was chosen for the 110th Congress. How is that done? Is it voted on by all the Democratic members? What about the ones who lost and won't return in 2007. Do they get to choose? What about the newly elected representatives and Senators? Do they get to have a say in anything about the leadership for 2007's congress?

In both House and Senate the new leaders are chosen by majority vote of the Democratic caucus. That consists of those Members who will sit in the new Congress. So yes, the new Members get to participate and those who are not returning do not.

# posted by

Mark Field : 11:38 AM

Thanks, Mark Field.

# posted by

JayV : 6:35 PM

Robert Link asks fair questions. One of them is dismayingly easy to answer: Do I think that a convention could construct an "ideal" constitution? No. I think that all constitutional design involves inevitable tradeoffs, in addition to inevitable mistakes made by humans. The practical question is whether we could indeed alleviate some of what I believe are the obvious problems with our present Constitution. I've been reminded, by Randy Barnett in a conversation at Georgetown, that some of my proposals would not require the sturm and drang of a convention at all. Rather, the problem is that Congress is busy thinking of more pressing issues and wouldn't be moved to respond to them until the trainwreck happens. Radically modifying the Senate would take a convention because there is no conceivable possibility of small states actually allowing such an amendment to be proposed or, if proposed, ratified thorugh the standard Article V procedures.

I'm not really hostile to "republicanism," nor do I consider myself a fan of "unfettered democracy." BUT, I do think that our present Constitution has a number of undemocraticd features, which I set out in the book, that really do serve no useful purpose under either democratic OR republican theory. I wish I had made clearer in the book, for example, that the Senate does NOT serve to protect federalism in any particularly coherent way. Rather, it's simply an affirmative action program for small states, who are enabled to engage in world-class rent-seeking as a result. If one really wants to protect a coherent notion of federalism, then look, for example, at what the Germans do, or, for that matter, call for the repeal of the 17th Amendment.

One problem I have with the spectre of Rush Limbaugh et al. is that, were people to read my book and actually be convinced that it makes sense to start advocating a convention, it clearly wouldn't take place for several years. So who knows if Rush and the gang would still be as powerful a presence in, say, 2012 as they are now. If I were given a Faustian bargain of having a convention next week or never, I'd have to think long and hard, since there's obviously a lot of reason to be wary of mass politics at this particular instant. But if we're talking about a new convention that is the result of a years-long process of public education and convincing people, in lots of different fora, that there interests really aren't served by the electoral college, the presidential policy veto, etc., then that would itself be transformative.
Still, I suspect that Robert Link and others are much more fearful about the Bill of Rights surviving. I'm really more sanguine. Ironically, a lot of people on the right who disdain liberal elites are also suspicious of unfettered police power. I was genuinely sorry several years ago when Bob Barr lost the Republica Primary in Georgia to a tax-cutting country-clubber. We would have benefitted from having his libertarian vote in Congress over the past four years. Similarly, I suspect that an awful lot of Northwesterners are actually quite sympathetic to the Bill of Rights, at least so long as Northeasterners recognized that the Bill of Rights included the Second Amendment. And so on.

I apologize if this has rambled. There is obviously more to say with respond to Robert Link's comment.

# posted by

Sandy Levinson : 9:33 PM

Professor Levinson: if we're talking about a new convention that is the result of a years-long process of public education and convincing people, in lots of different fora, that there interests really aren't served by the electoral college, the presidential policy veto, etc., then that would itself be transformative.

Amen. If effective such a process would wipe out my fears of what our current semi-literate rabble of MTV watchers would vote in at a new convention. It's a transformation you are already making progress on, even if you never get your convention.

# posted by

Robert Link : 6:37 PM

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مكافحة حشرات بجدة
شركة مكافحة حشرات بالدمام
شركة جلي رخام بالرياض

# posted by

Unknown : 4:42 PM