Can a Lame Duck Fly?

What a Democratic Congress Could Still Do After Defeat

I’m Paul Musgrave, a political scientist and writer. This is Systematic Hatreds, my newsletter about my thoughts regarding politics and the study of politics. The newsletter takes its title from a line in The Education of Henry Adams:

Politics, as a practice, whatever its professions, had always been the systematic organization of hatreds.

This week, we’re talking about continuity of government if Democrats lose both chambers next week. My evil twin Pavel has taken the controls for this week.

Can a Lame Duck Fly?

Americans love to talk about the genius of their Constitution, or at least they used to, but the Constitution’s details are neither well-crafted nor particularly smart. Eskridge and Levinson put together an entertaining and troubling volume on Constitutional Stupidities, Constitutional Tragedies. A constitutional stupidity is a nonsensical and (for us now) harmful provision—the Electoral College, for instance, may be one; the Fourteenth Amendment’s vagueness about what its authors wanted rather than indirect means of attaining those objects may be anther. There is a case for the “necessary and proper” clause (what does it mean, anyhow?) or the “good behaviour” clause, but I think that Michael Stokes Paulsen’s nominee of the clause allowing the vice president to serve as presiding officer of the Senate at his own impeachment trial is probably more convincing.

Right up there with those, however, is the lame duck session of the Congress. We all already have had a great reminder of the dangers of the extended transition period between the federal elections, the meeting of the electors, and the official election of the president. Less appreciated is the awkward period between November and January when a Congress that may have been repudiated continue to sit. (This used to be even worse: before the 1930s, elections were still in the fall of even-numbered years but the new session of Congress would not be held until December of the subsequent year!) That Congress continues to meet and has the full power to legislate that it had before the election, even if it may be a lame duck.

This has some obvious flaws. If the check on political malfeasance is the electoral connection—the ability of voters to defeat bad politicians—then a lame duck Congress could be a rogue Congress. (The Framers assumed honor would fix this, but they also thought a lot of things.) The West Wing actually toyed with this idea in “The Lame Duck Congress”, in which the president tried to pass a nuclear test-ban treaty through a lame-duck Senate. Alas for the test-ban treaty, the lamest duck of all is its greatest senatorial champion, who tells Toby that his conscience will not allow him to vote for the treaty: “his constituents voted him out of office and elected someone who opposes the treaty, and he feels duty-bound to respect his constituents' choice.” This is played as a noble choice.

Well, Democrats stand a good chance of losing both chambers of Congress next week. Forget Aaron Sorkin’s politico-masochism. If Democrats are serious about standing up for institutions, it’s time to use this institutional glitch to fix them. It’s time to make the lame duck fly.

Should Democrats lose narrowly, they will still be able to claim substantial legitimacy in their actions, especially given the depth of gerrymandering and structural dangers they face. A unified Congress should still be able to legislate given the stakes it faces. And there are a number of issues that require attention, including reforming the Electoral Count Act, passing a budget, securing same-sex marriages, and (now) improving security for members of Congress.

So why not enlarge the agenda? A defeat for Democrats in Congress might mean the loss of a majority for several Congresses, and heralds the possibility of a 2025 unified Republican government again (not least because the 2024 Senate map is probably worse for Democrats than this year). A Democratic Congress could take several steps in a lame duck session to advance their agenda and shore up institutions to resist another Trump term and hostile state governments—if it’s willing to play ball.

Statehood for the District of Columbia

Statehood for (most of) the District of Columbia and its residents should be a Democratic priority in a lame duck. It would add two senators (potentially making a 51-49 Republican Senate a 51-51 Democratic chamber!). On a less partisan basis, it would also mean that the District’s hundreds of thousands of residents would not be at risk of direct rule should a future Republican Congress revoke the legislation granting it local government (or do so piecemeal). It would also rectify the anomaly of D.C. residents having presidential but not congressional representation. And it would offer another check to January 6-style events by letting D.C.’s National Guard be placed under independent rule rather than presidential control.

Repealing the Debt Ceiling

The debt ceiling is unnecessary, probably unconstitutional, and dangerous. In the hands of an obstructionist opposition chamber, it could lead to a series of destabilizing government shutdowns—and potentially worse. Repealing it removes a chamber from the Russian roulette of the next two years. If we’re going to have a budget fight, let’s have it over the actual budget.

Aid for Ukraine and Others

The House Republican caucus looks like it’s going to do its very best to prove my point that divided government and political polarization make international hegemony a difficult strategy to sustain. One area of conflict will plausibly involve further aid to Ukraine, at a time when jeopardizing that aid could weaken Kyiv’s ability to resist. Sure, nobody wants to write a blank check, but how about authorizing a big check? (Senate Republicans seem more on board with this one, so this will probably be less controversial.)

Confirming Officials

The Biden administration has been doing okay with confirming judges and other officials, but it should be prepared for the possibility that a Republican-controlled Senate (especially one that hits the unlikely spread of 53-47 or greater) might not confirm any nominees that it does not choose. The treatment of Archivist nominee Shogan, who was not agreed to in committee, demonstrates how bad it is now. Accordingly, Senate rules be damned (or amended), everyone pending on the nominations calendar needs to be pushed through—and every judicial vacancy needs to be filled as well. (Similarly, Cabinet secretaries who feel tired should consider stepping aside now, and older liberal Supreme Court justices should consider resigning during the lame duck session so they can be replaced by young jurists who also run triathlons.)

This really should be the unobjectionable priority, by the way. There’s a possibility that we’ll have two years of an “acting” government in many positions, and the system just doesn’t work that way.

Expanding the Court

This one should be self-evident: there’s a 6-3 majority and it’s been a disaster for liberal priorities. It’s also likely to be a disaster for Democratic competitiveness in any close election and for future policy priorities. Even two more justices would restore balance to the Force.

Eliminating the Lame Duck Session

Do all this and then pass an amendment that eliminates (or vastly shortens) the period between Congressional elections and the new Congress being seated. (Pssst: you could also do this for the presidential elections.) It’s the right thing to do anyway.

But Wait: This Will Never Happen, Right?

The obvious rejoinder is that Manchinema (and the larger group of Senators they provide cover for) will never stand for this. (In the House, there’s a similar if less heralded group.) Sure, probably. But will they stand for any of this? Even one of these would be a permanent improvement over the status quo for Democrats qua Democrats.

The more principled response is the classic Washington response: but what about the precedent? This is overblown. Republicans cannot retaliate by doing anything they would not already do. The only question is whether Democrats will suffer the price without making up the yardage. As Nixon would say, if you’re going to take a hit either way, make the big play.

The technical response has to do with procedures. This is just a special case of the precedent response: rules can be changed, and what evidence do you have that the next Senate Republican majority will be unwilling to change them to their advantage? There’s no strategic interaction here, just a chance to make progress or not.

The savvy response has to do with the other priorities for the lame duck. The budget, the NDAA, and all of the rest really do matter. Republicans could in fact make passing those priorities somewhat harder. The argument for being forward-leaning here is simply that there’s already a record of bipartisan achievement, and now it’s time to govern like a governing party. Set up the cots in the cloakroom and cancel Thanksgiving plans.

The political response is that there will be a public backlash. No, there won’t. (At the risk of being the bad guy in the Onion classic.) If Republicans win Congress back after January 6 and the Dobbs decision, then there is no more—meaningful—electoral penalty for norm transgression. Might as well get some priorities done.

Worth Reading

Ed Burmila’s Chaotic Neutral: How the Democrats Lost Their Soul in the Center is a spirited critique of the Democratic establishment. Ed is a recovering political science professor, and his copious footnotes betray how much of the scholarship on parties and political development he’s read and understood. His thesis is that the leadership of the Democratic party is blinded by ideological commitments to centrism, a triangulation between the party’s New Deal base and the shifting baselines of right-wing Republicans. In so doing, the party has lost track of its need to deliver clearly comprehensible and tangible benefits to its constituents—a difficulty compounded by the party establishment’s own material class: comfortable white collar professionals are not apt to need the social services that FDR brought into being and LBJ expanded. Burmila’s book is a cracking read (even if it faces tensions between electoral politics and policy outputs: much rides on the idea that, once enacted, social benefits can’t be repealed by a Republican majority in a subsequent Congress).