Voters elected a new Congress more than five weeks ago. With only a couple of exceptions — one House race and one Senate race — the members of the 114th Session had been certified within a few days. Thanks to the age of mass transit, the new Congress could have arrived in Washington DC within a week to represent the will of the people, and replace those who no longer have the trust of the voters.
So why are budgets and laws still getting created and approved by people who have been voted out of office? Better yet, why didn’t those tasks get finished before the election so that voters could hold their elected officials accountable? That’s because the 2oth Amendment didn’t go far enough in preventing mischief from outgoing officeholders. In my column today for The Fiscal Times, I call for a new amendment that provides for a clear end to Congressional sessions, one that will discourage can-kicking and even worse forms of mischief:
First, Congress has once again left a budget to be settled after an election in what has become a routine process. Americans have grown weary of the unnecessary brinksmanship that resulted from the collapse of normal-order budgeting, which gives due consideration of separate appropriations measures that fund specific agencies for the entire fiscal year.
Instead of rationally funding the federal government in a normal annual budget process, Congress and the White House have grown accustomed to using the continuing-resolution process that allows politicians to delay substantive action and create artificial crises. They then use those crises in order to pass massive omnibus spending bills on an emergency basis, a process that make transparency almost impossible. Also, thanks to the delayed resolution of what should be a normal budget process, omnibus bills usually contain a number of designated “emergency” funding measures, a designation that allows Congress to bypass spending caps, such as the Ryan-Murray cap that this so-called “CRomnibus” bill will likely violate.
The existence of a lame-duck legislative session not only makes this possible, but also downright encourages it. Budgets involve taking difficult votes and making compromises to get a reasonable consensus in both chambers on legislative priorities.
Voters have the right to be able to pass judgment on those decisions; after all, that’s the entire basis of representative government. Increasingly, though, Congress after Congress not only ends up postponing those votes until after an election, but also actively plans to do so thanks to the two months the current Congress gets to hold power after voters have elected others in their place. …
The 81-year experiment with lame duck Congresses has proven itself a failure, even more so than the previous four-month presidential lame duck periods that were shortened by six weeks in the 20th Amendment. It’s time to revert back to the original timing for Congressional sessions and make elected officials entirely accountable to voters.
I should explain the “original timing” remark, though. The original start date for a new session of Congress, set in the US Constitution (Article I Section 4), was “the first Monday in December.” In practice, though, that meant December of the next year, although Congresses could and did agree to meet sooner. By restoring the original language (superseded by Amendment XX) or specifying that it means the same year, we would have only a four-to-five week recess between elections and the start of sessions.
By forcing a session end on Election Day, it would prevent the kind of lame-duck abuses that have become commonplace and disincentivize the impulse for can-kicking. Few majority leaders would take the risk that they would lose control of budgets and agendas, and that would force them to get serious while allowing voters to hold them accountable for their actions. If the need for a Congressional session arose sooner, the Constitution already allows for a newly elected leadership to call a session to order earlier than the first Monday in December, although an amendment could be drafted to make that explicit. At least that would still leave that process in control of those who were just endorsed by the voters, who have a lot more legitimacy to create laws and budgets than those who just got repudiated — as is happening now.
Amending the Constitution is by design an arduous task, but there are plenty of reasons for everyone to hate lame-duck sessions. Even the unions are angry over the 2014 version. Perhaps we could see a conservative-progressive alliance on behalf of true transparency, legitimacy, and efficiency. Who wants to try?