Are Lame Ducks Really Dangerous Beasts?

Lame-duck sessions raise the fearsome specter of the unknown. Will the retiring and defeated Members play out their final act in character? Or will they, like wounded animals, lash out in dangerously erratic, electorate-defying ways?

It was that latter prospect that moved Rep. Tom Price (R-Ga.) before the August and October recesses to offer resolutions purporting to raise "a question of the privileges of the House" to block any non-emergency lame-duck session.

Under House rules, questions of privilege are those "affecting the rights of the House collectively, its safety, dignity, and the integrity of its proceedings." In both instances, Speaker Nancy Pelosi (D-Calif.) ruled Price's resolutions did not raise a legitimate question of House privileges, since such resolutions must reflect an actual violation of House rules or its procedural integrity. Moreover, they cannot make changes in House rules. Price's resolutions, the Speaker held, would impose a new order of business on the House (a rule change), by proscribing its schedule.

So why did Price twice engage in these exercises in seeming futility? First, because the Speaker's ruling precluded any debate, Price crammed all his arguments into a 1,700-word resolution that the reading clerk was required to read. It contained every sin (real or imagined) committed by Democrats in the 111th Congress, plus a listing of every conceivable piece of damage they might inflict in a lame-duck session.

Second, in both instances, after the Speaker ruled against consideration of the resolutions, Price appealed the rulings, thereby forcing a roll call vote on the majority's motion to table his appeal. Price essentially forced Members to go on the record (in an indirect, procedural way) over whether they favored a lame-duck session. That vote could then be used against them in their re-election campaigns.

And third, the dramatic antics helped raise the visibility of possible abuses that could occur in the form of sweeping legislation that might be called up in a post-election session, including a value-added tax, cap-and-trade and omnibus spending bills chock full of costly earmarks. Price was cleverly conjuring an incredible hulk—one bent on plundering hapless taxpayers—from a limping lame duck.

I have long opposed appealing obviously correct rulings because such challenges show disrespect for the authority of the institution and its precedents. Moreover, if the appeal had succeeded, it would set a dangerous new precedent under which almost anything would have to be ruled as privileged, thereby tying the House in interminable procedural knots while blocking consideration of essential business—something the new Republican majority should want to avoid. Nevertheless, Price has raised a legitimate political, if not procedural, question: To what extent should a defeated majority pursue its legislative agenda after being rejected by the voters?

The Constitution was amended in 1933 for the specific purpose of avoiding such lame-duck mischief. Prior to ratification of the 20th Amendment, the entire second session of a Congress met after the election, from December to March. What propelled the Constitutional reform was a publicly unpopular ship subsidy bill that passed in a post-election session in 1922 with the help of some 94 lame-duck Members. The 20th Amendment prescribes that a new Congress begins two months after an election. The assumption was that Congress was less likely to reconvene over the holidays. But from 1994 to the present, Congress has held lame-duck sessions every two years except in 1996.

We have two fairly recent examples of lame-duck sessions after elections that changed the party in control of Congress: 1994, when Republicans won the Congress, and 2006, when Democrats took back control. One might suspect outgoing majority party leaders, with a president from their party still in office, would use the sessions to make final legislative payoffs to their allied interest groups. Yet the 1994 Democratic lame-duck session returned solely to approve President Bill Clinton's General Agreement on Tariffs and Trade legislation (with GOP help), while the 2006 Republican lame-duck session returned primarily to wrap up tax, trade and spending bills (only to kick the spending bills down the road in a two-month continuing resolution).

The current Congress has raised particular concerns, given the large amount of business it did not complete prior to the 2010 elections. Congressional Quarterly has listed 15 major issues as pending, of which five might be considered "must pass": extending government funding (by omnibus appropriations or a CR), income and other tax break renewals, Medicare physician payment rates, unemployment insurance, and the Strategic Arms Reduction Treaty with Russia.

As much as the Democratic leaders hope to enact the rest of their wish list, such as increasing taxes on the rich, helping children of illegal immigrants gain citizenship and allowing openly gay men and lesbians to serve in the military, they will soon realize the only thing they can realistically try is Members' patience. Lame-duck Members, like re-elected incumbents, aren't vindictive or given to radical mood swings. They're just tired and want to return to their families for the holidays.