Now that we've all sighed in relief for the millions of struggling Americans receiving additional jobless benefits, eviction protections and stimulus checks thanks to the overdue passage of a second Covid-19 relief bill, we're left with some troubling questions. Among them: What does it say about the state of our democracy that we're increasingly reliant on lame-duck sessions of Congress, when representatives are least accountable to their geographic constituencies, to get anything done at the national level?
Much more important is to reform the system than to expect these biennial lame-duck interludes to rescue us.
While it might be tempting to see these sessions as salvation from our current gridlock and to hope they're used to their full lawmaking potential, that would be shortsighted and a mistake. Much more important is to reform the system than to expect these biennial lame-duck interludes to rescue us.
Since our country's founding, lame-duck sessions — when Congress meets after Election Day but before the next Congress is sworn in — have been paragons of undemocratic, self-serving behaviors. After all, allowing legislators to make decisions on behalf of voters from whom they feel less pressure because campaign scrutiny has temporarily lifted — or, worse, by whom they were recently repudiated at the polls — is a pretty clear violation of the representative-constituent contract.
In the distant past, losing legislators would trade votes at lame-duck sessions for patronage opportunities, like executive appointments or plum lobbying gigs. In modern history, we see parties that have lost majority status rush to fulfill their agendas or rig the system to diminish the incoming party's authority. These habits aggravate ill will and mistrust between the already dangerously divided parties and between government and the people.
Of course, there is evidence that under intense partisan polarization, lame-duck sessions may be more welcome than problematic. Given just enough distance from re-election worries, legislators are marginally less likely to indulge special interests and party leaders and more likely to break with their usual ideological voting patterns. Party leaders are also less likely to hold up legislation (e.g., Covid-19 stimulus) as a tactic to drive voters to the polls.
And defeated politicians can even act on principle. As House Majority Leader John Tilson, R-Conn., opined in 1932, the lame duck "is one time in the life of a Member of Congress when he can vote his real convictions without the hope of reward or the fear of punishment." Research from George Mason University's Mercatus Center found that voting along party lines drops by 3 percentage points during lame-duck sessions, supporting the theory that lawmakers are modestly freer to act during such periods.
But mostly the period has been used for more ignoble purposes. Historically, accusations of vote-selling abounded (particularly during the Gilded Age but continuing well into the Progressive Era), and Republican House members especially were loath to give up the advantages the sessions afforded even as reformers tried to get rid of them. Thus the movement to restrict lame-duck lawmaking took decades, change in party control and a major scandal to happen. Finally, in 1932, Congress passed the 20th Amendment, also known as the "Lame Duck Amendment," which was ratified the next year. It shortened the lame-duck period so it ended in January, not March — too brief to justify even holding, so the reformers believed.
Over the years, however, the consensus that lame-duck sessions should be used sparingly faded and the abbreviated time frame began to be used more for partisan and electoral strategy reasons. From 1935 to 1998, Congress held lame-duck sessions in less than half of Congresses; since 1998, the year the lame-duck Congress impeached President Bill Clinton, we've had one after every regularly scheduled congressional election. They've also grown progressively longer and more focused on government funding and general legislative matters that ought to have been dealt with pre-election.
Before the late 1990s, Congress was much more productive during regular sessions, as the parties were more ideologically diverse, and it was possible — common, even — for Southern Democrats, say, to work with their conservative Republican counterparts. And not only did mid-to-late-20th century Congresses get a lot done, but party unity and re-election data indicate that members were also able to do so without the ever-present threat of being punished by their constituents or party leaders.
Today, though, members live in fear of ideological purity tests and being challenged in their next primary elections and seem to be rewarded more for assigning blame than for solving problems. With our narrow, constantly shifting majorities, unified power seems always just around the corner — if your party is disciplined enough to get there by strictly obeying party leadership, playing hardball and denying the other party any semblance of a win. All of which is enabled by an us-vs.-them mindset.
That means that the post-election period is the closest thing legislators have to a safe haven for dealmaking, and experts have predicted that as polarization continues, we will rely on lame-duck sessions more and regular sessions less. But we shouldn't simply accept the inexorable increase in lame-duck lawmaking and the corresponding reduction in pre-election governing. There are steps we can take to encourage more year-round productivity and responsiveness.
Chief among them is to reboot Congress in a way that recalls the best parts of the mid-century system, in which internally diverse parties engaged in compromise and coalition-building, but leaves the two-party system behind.
The best way to do this is get rid of the "winner-take-all" system in which the congressional candidate with the most votes, but not necessarily the majority, gets to represent 100 percent of a district. This contributes to polarization, because it incentivizes parties to cater to a specific base of loyal voters they can best turn out at the polls rather than to aim for broader but less devoted appeal. It also creates "safe" districts where one of the two parties may not even bother to put up a fight knowing it's a perpetual minority. And polarization is what leads parties to become increasingly extreme and inflexible.
Fortunately, there are promising alternatives at our fingertips, including ranked-choice voting for House and Senate elections. Under ranked-choice voting, you don't have to worry that your vote for a third-party candidate will be wasted; it gives smaller parties a fighting chance and incentivizes the two major parties to appeal to voters outside their traditional bases. If it is widely adopted, we can expect a more moderate and responsive politics in which Congress would find it harder to stall on vital legislation.
In the distant past, losing legislators would trade votes at lame-duck sessions for patronage opportunities, like executive appointments or plum lobbying gigs.
Congress can make these and related reforms a reality without the need for another constitutional amendment. In fact, Congress could simply pass a bill to change how members are elected. But to do so, politicians need to be convinced — as they were in the 1930s — that a different arrangement would work better not just for the country, but also for them personally.
It's clear to many of our leaders that we can't go on much longer with such high levels of polarization and regular-session gridlock. But for members naturally disinclined to shake up the rules that got them elected, let's hope the prospect of spending every other Christmas for the rest of their careers duking it out at the Capitol helps do the trick.