Balkinization  

Thursday, December 11, 2008

It's time to amend the 20th amendment

Sandy Levinson

Part of the reason we are in the fix we're currently in is because of the 20th Amendment, which does two things: It sets inauguration day at January 20 and Jan. 3 as the date for a new Congress to convene, unless Congress sets a different date, which this time will be January 6. I have certainly dwelt on the costs of the hiatus between election and inauguration, and I won't treat that subject any further in this particular post. But consider a story just filed in the Times, entitled "Republicans Stand Firm, Putting Bailout in Doubt." Mitch McConnell, the Senate minority leader, has announced his opposition to the House bill. The important point, of course, is that it really doesn't matter if the House bill could get a majority vote in the Senate because it has become customary practice now to require 60 votes in order to bring most votes to the floor, a thoroughly undemocratic feature of our political system that cannot be blamed directly on the Constitution except insofar as it licenses each House to vote its own rules of procedure.

So the situation is this: Any vote in the Senate will obviously count fully the Republican lame-duck senators who were either booted out of office (as in Alaska, North Carolina, New Hampshire, and Oregon) or decided to retire and were replaced by Democrats (as in New Mexico, Virginia, and Colorad0). Illinois is notoriously now without a senator because of president-elect Obama's resignation, and it is obvious that there will be no new senator from Illinois for a while. I note, incidentally, that the Bush Administration has gotten behind the House bill (once it was stripped of an anti-pollution measure the Administration objected to), so this is further evidence, if any were needed, that George W. Bush has zero, nil, nada, zilch politcial authority remaining even for members of his own party.

It is, frankly, indefensible that lameducks have the power to block this bill from coming to a vote. This is the equivalent of what Prime Minister Harper has done in Canada, and at least some Canadians, for all of their famous mild-mannerness, are marching in the streets. But we're prepared to tolerate it and treat it as simply a reality we must live with now and, presumably, into the indefinite future. I note, for what it's worth, that the Bush Administration has in fact gotten behind the House bill (once it was stripped of an anti-pollution section), so the Senate Republicans are demonstrating, as if further demonstration were necessary, that George W. Bush has no, zero, nada, nil political authority left even within his own party. He has become truly irrelevant, save for the powers vested in him by the Constitution, where he may continue to be all too relevant.

So why isn't there a call to emulate our praiseworthy ancestors and to do what they had the wisdom to do in 1933, i.e., amend the Constitution and make it more congruent with contemporary necessity? It's too late to save us today, but, obviously, there's no reason in the world to think that the future will also look rosier than the present with regard to post-election, pre-January events. There is also no reason in the world to delay the seating of newly elected representatives and senators beyond a week after the election. If there is no need for what in the alternative would be a lame-duck session, then they can devote their time, after being sworn in, to looking for places to live and deciding whom to hire to staff their offices. But if there is such a need, then we'd have a politically legitimate Congress instead of the pathetic group of lame-ducks who can bask in their complete unaccountaibility to the American public. Why shouldn't Americans of all political pesuasions call on their so-called leaders to support a new 28th Amendment that would address at least this particular problem, even if, contrary to my own wishes, it maintained silence on inauguration day, the electoral college, and how to reconstitute a government following a catastrophic attack?




Comments:

Sandy:

We also have lame ducks before the election who have decided to retire or are term limited like the President. Should they also be prohibited from voting?

There is no system of representative democracy where you will not have lame ducks.
 

I'm sure you'd be happy to know that Keith Olbermann wondered the other night it it weren't time to reduce the length of the transition.
 

Although I am tempted simply to ignore Mr. DePalma's question, I will take the trouble to answer it just in case anyone takes it seriously. Although he raises an interesting point, if one were devoted to a certain kind of consistency above all--should "retiring" senators stop voting (my answer is no)--the response is simply to point out that there is really no way of replacing the retiring senator until the replacement is selected. There are lots of circumstances in which we settle for imperfection if we believe there is no plausible way to better the situation, and this is obviously one of them. So we let John Warner fully participate until election day because the alternative is to deprive Virginia of its constitutionally-mandated representation in the Senate. But once the election takes place, we no longer are faced with the problem as defined. He coule be replaced the next day by Mark Warner.

So, even if Mr. DePalma is correct, as a formal matter, that "there is no system of representative democracy where you will not have lame ducks," we should be able to agree that a) lame ducks and democratic theory make uncomfortable partners; and b) there is a ready solution to lameduckdom once an election takes place. I literally cannot believe that Mr. DePalma can disagree with this (or on what grounds he would do so, especially with members of Congress, where the "transition" argument is really minimal).
 

You're still having trouble with the point that, while the date they take office is constitutional, the date of the election is statutory: So the difference between them is not of a Constitutional nature. Change the date of election day, you can do it with a law.

"lame ducks and democratic theory make uncomfortable partners;"

I'm with Bart here; It's unavoidable in a representative democracy. And no matter how short the gap between election and taking office, the lame duck who's been repudiated at the voting booth is not conceptually different from the office holder who decides to forget about his prospects for reelection, and will remain in election for the rest of his term even though he's begun regularly outraging his constituents. Who has not been repudiated at the voting booth only because the election hasn't happened yet.
 

Sandy Levinson said...

So, even if Mr. DePalma is correct, as a formal matter, that "there is no system of representative democracy where you will not have lame ducks," we should be able to agree that a) lame ducks and democratic theory make uncomfortable partners; and b) there is a ready solution to lameduckdom once an election takes place. I literally cannot believe that Mr. DePalma can disagree with this (or on what grounds he would do so, especially with members of Congress, where the "transition" argument is really minimal).

Sandy, I just cannot get that upset over lame ducks and transition periods between elections and taking power because I do not see a practical way to avoid either or any particular harm.

I assume that our representatives will act in good faith when they are lame ducks in that they will continue to operate as they have done before. Your apparent problem with the lame duck GOP senators is not that they have changed their MO with the onset of lame duckery, but rather that they are continuing to vote against policies which you support.

I do not see the tension between lame ducks and democracy. Voters elected the various lame duck GOP senators and their policies for a set term in office which ended after the election. The new Dem senators were elected for the following set term in office. The fact that there is a slight delay in the transition does not mean that the voters have been denied their choice of representatives and policies.

Seriously, I suspect that your problems with lame ducks and transitions has less to do with constitutional defects and more to do with personal impatience with waiting a couple months to have your team come to power after wandering the political wilderness for so long.

Have faith. The transition will happen for good or ill.
 

"There is also no reason in the world to delay the seating of newly elected representatives and senators beyond a week after the election."

This entry is somewhat all over the place. As to Bush, the fact a lame duck is not respected by members of his party who aren't, is not really surprising. No need to target him personally for that fact.

Also, is it clear -- given the filibuster rule -- that the lame ducks are the ones blocking the bill? The Dems have a +7 at the moment, and surely not all of the lame ducks are against the bill. McConnell won, so isn't one of them.

As to "a week," at least three wasn't decided w/i a week of "the election" (11/4), one still isn't filled, and others are or will be vacant because of Obama's win.

It makes sense to have a grace period. The people now in office were elected for six year terms by the people of their states.

And, again, lame ducks isn't the reason, if Bush in particular isn't blocking anything, and (as noted in the past) there is a reason to have more than a week for the presidency.

The calm and collective Bart is appreciated though.
 

Prof. Levinson:

[I]t has become customary practice now to require 60 votes in order to bring most votes to the floor...

... if it's a Democratic party backed bill, and the Republicans are in the minority. If the Republicans are in the majority, it wouldn't ever see the light of day much less an up-or-down vote, and would have to be explained in press conferences or quasi-"hearings" in Congressional basement rooms.

If the Republicans are in the minority, though, it seems that a "hold" of even one senator, who need not go on the record for doing so, is enough to SNAFU the bill. No filibuster needed. But this is the fault of the Democratic leaders for having forgotten how to actually govern in the face of obstructionists and bomb0-throwers like today's Republican party.
 

I did the analysis and it turns out if the newly elected senators were permitted to vote, it would have brought the vote close enough so that those Democrats would didn't vote at all, probably would have voted. With new senators votes, they would have had 56 yes votes...4 dems didn't vote, if it were that close, they likely would have voted. This would have brough it to the sixty necessary.

Oh and England elects its parliament only days before they take office. So it's possible.
 

This comment has been removed by the author.
 

If it wasn't clear, I was referring to the auto bailout vote.

It was done after the election, so the retiree question doesn't matter. The newbies were elected already.
 

It's also fair to note, since there is no senators from Illinois and if Biden or Hillary resigned (which they can do any time), then the amount of votes needed for ending a filibuster, which is 3/5's of the senate, would decrease, making it more reasonable it could happen.
 

tell me which side i'm on
approaching constant failure
who's friend or foe?
between love and hate
which path to follow?
how can i keep balance in this race?
come faith i'm dying.. slowly
 

Post a Comment

Home