woody_zimmerman_118_2007The 111th Congress – which suffered significant defeats in the fall elections – is giving no indication of “going softly into that good night.” Instead, Dems are riding out with guns (figuratively) blazing during a prolonged lame-duck session that threatens to spill over into the Christmas holidays. Indeed, Senate Majority Leader Harry Reid (D-NV) has noted that the 111th Congress is legally in office until January 3, 2011. At the time of this writing, it is not yet clear if Mr. Reid intends to keep the Senate in session until the very stroke of noon on that date, when the new Senate and House take office.

It was long suspected by political pundits and watchers that Democratic congressional leaders might try to use the lame-duck session to ram through various liberal initiatives that they didn’t dare to push before the election. That suspicion has been vindicated, as House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid have rolled out an ambitious liberal agenda for the eleven weeks between the election and the seating of the new Congress. Most of their lame-duck legislative program would have been political dynamite before the election.

In truth, the lame-duck phenomenon reveals a certain anachronistic flaw in our Constitutional framework of governance, dating from the 18th century. The very timing of our elections is a throwback to an era when most of the country moved on an agrarian schedule. Summer was the busy time for farmers, which included 90% of all Americans. Winters featured heavy snows and impassible roads. Springtime brought rain, mud and swollen streams. Thus, autumn became the logical time for political campaigning, and November a sensible time for people to come to the polls to vote.

Originally, the Constitution specified March 4th as the date for a new president and Congress to take office. This allowed time for new members to get their affairs in order and make the often arduous trip to the capital over muddy and snowy roads. When George Washington began his first term as president, he could not get to New York – then the temporary capital – until late April. He was sworn in on April 30, 1789.

In 1933, the 20th Amendment was ratified. It specified noon of January 20th as the day for a newly elected president to take office, and noon of January 3rd for the new Congress to be seated – thus reducing the time in the lame-duck period by six weeks. This was a tacit recognition that times had changed. Travel was now possible by automobile, rail and air. It also reflected a general perception that the four-month period between elections and taking office was outdated.

It is possible that we have now reached a time when the 11-week lame-duck period is also outdated. That is a long time in our era of high-speed travel. Granted, newly elected members of congress and a new president still need some time to get their personal affairs in order, But the Constitution’s framers surely never envisioned lame-duck congresses sitting for weeks after an election, enacting significant (and controversial) pieces of legislation that they could not have even addressed, let alone passed, before the election, due to political pressure.

Right now, Democrats see no problem with the lame-duck arrangement. They were the beaten party in the November elections, so this is their last gasp at exercising congressional power before the GOP takes over the House and reduces Democrats’ Senate-majority by a half-dozen seats. Dems have joyfully romped through various tax-, spending- and social-change-bills that they just couldn’t seem to get round to during the previous two years. Most of the measures would have attracted damaging slings and arrows from one side of the political spectrum or the other. And some measures – e.g., the proposed $1 trillion “stimulus” bill packed with pork-earmarks, and the so-called Dream Act which would have provided a path to legalizing certain children of illegal aliens – were too controversial to pass even during the politically unaccountable lame-duck session.

Democrats are having fun right now, but their “historic” (some might say “hysteric”) session is unwise and very short-sighted. They will comprehend this when the shoe is on the other foot – meaning a future time when Republicans have been shown the door in an election, but defiantly try to ram controversial legislation through during a lame-duck session. If that happens, Democrats’ howls of outrage will be deafening, and they will be just as correct in their criticism as Republicans are now.

Everyone will have an opinion on a solution for this “problem” – if it is a problem. To my mind, there could be two reasonable solutions. One would be a new Constitutional amendment along the lines of the 20th Amendment, which might further reduce the lame-duck period following an election. A new date of perhaps December 10th for seating a new Congress might work.The new Congress would not necessarily have to hold sessions that early,but if congressional action were needed, they could convene. This would keep a retiring Congress from enacting law after voters had dismissed them.

Enactment of a Constitutional amendment often takes time, so a stopgap solution might be a kind of Congressional “gentleman’s agreement” not to repeat the recent performance of the 111th Congress. This would be a little like locking the barn door after the horse has escaped, but it would at least head off a repeat of the Lame-duck Session from Hell – maybe.

The problem is that both parties to the agreement would have to be trustworthy. Democrats might be all for it now, since they made hay after their drubbing by voters in November. They could calculate that making the agreement now would be a good thing, as it would prevent Republicans from doing the same in a future lame-duck session. But more cynical observers (c’est moi!) would anticipate Dems pitching the agreement when they find it in their interest to do so. Historically, Republicans have been easy marks for such hands-across-the-aisle agreements, having been repeatedly rolled by Democrats on issues like promised spending cuts, etc. “Promises, like pie-crusts,” Lenin once said, “are meant to be broken…”

If no agreement can be reached, nor a Constitutional amendment proposed, to remedy this problem, Republicans can at least learn from their political rivals. (Notice that I didn’t call them “enemies.”) They can keep their guns oiled and their powder dry, against the time when that they can also use a lame-duck session to advantage. If that’s the way the game is going to be played, they might as well be players.