20th Amendment Tried To Do Away With Lame Ducks

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Defeated and retiring lawmakers appear to be earning their paychecks, and then some in the final sessions of the lame-duck  Congress. They're hammering out major last-minute bills on tax cuts, the military's "don't ask, don't tell" policy and other key issues. But law professor John Copeland Nagle of the University of Notre Dame tells Linda Wertheimer that's not how the Constitution's framers wanted it to be.


When you envision a lame duck, images come to mind of a creature that's been weakened, hobbling along with a clipped wing - not so with this lame-duck Congress. Defeated and retiring lawmakers appear to be earning their paychecks, and then some. They're hammering out major laws at the last minute on tax cuts, the military's "don't ask, don't tell" policy, other key issues.

John Copeland Nagle is professor of law at the University of Notre Dame, and he joins us to give us some history on the lame-duck session.

Good morning.

Professor JOHN COPELAND NAGLE (University of Notre Dame Law School): Good morning, Linda. Thanks for having me.

WERTHEIMER: Could you tell us about the term lame duck and where it came from?

Prof. NAGLE: You know, the histories of it are a bit obscure. It appears to have originally referred to some kinds of problematic securities trading in the 19th century. But by the early 20th century, it had taken on this description of lawmakers who had been voted out of office, but who were still holding their seats.

WERTHEIMER: The 20th Amendment to the Constitution, which was passed in the '30s, seems to have been an effort to modernize the Constitution, sort of clean up some details. It takes into account that 20th or 21st century travel makes it possible for a newly elected Congress to get right to work. But I'm wondering if there was a sense that these leftover legislators were actually up to no good?

Prof. NAGLE: And that was really the whole point of it, and if you read the text of the amendment, you don't get a sense of how passionate pretty much everyone throughout the political spectrum during the 1920s and early 1930s were about getting rid of lame ducks and prevent them from passing kind of any significant laws.

WERTHEIMER: What the amendment does, technically, is change the date that the Congress convenes. It was March 3rd, and it becomes January 3rd. So there's just not that much opportunity for a lame duck Congress to meet.

Prof. NAGLE: And the expectation at the time was that the people writing the amendment just couldn't imagine that Congress would come back into session between November and the beginning of January. With the holidays and winter travel, it just was not something they could conceive of.

WERTHEIMER: So do we consider that the 20th amendment failed?

Prof. NAGLE: It is a failure. As best I can determine, it's really the only time we've tried to amend the we have amended the Constitution, but have failed in what we were trying to do.

WERTHEIMER: Now, my sense is that in this Congress, most of the very significant legislation that is passing in this lame-duck session has bipartisan support: the tax bill did, the repeal of the military's "don't ask, don't tell" policy did. Perhaps the concern arises when lame-duck sessions do something that the Congress preparing to come to Washington would not have done.

Prof. NAGLE: And that's certainly the biggest concern, you know, where there's a calculated effort to try to rush through some kind of legislation that it's clear that the voters through the people whom they elected in November don't want.

WERTHEIMER: One of the more extraordinary things that happened in lame-duck Congress was the declaration of the war in Europe, the impeachment of President Clinton.

Prof. NAGLE: I think President Clinton's impeachment is exactly the kind of thing which causes people to dislike lame ducks. That occurred after an election when the balance of power was tilting more towards the Democrats, but the Republicans, in that instance, pushed it through, anyway.

The declaration of war, I think, is an example actually of what people are concerned that a lame-duck Congress be able to do. If Pearl Harbor had occurred the year before, in December 1940, that would have been during a lame-duck session, and of course we would want Congress to be available to respond to something like that.

WERTHEIMER: So what's your judgment? Are lame ducks a good thing or a bad thing?

Prof. NAGLE: Well, I think they're a bad thing. And the fundamental problem, I think, is that they are contrary to the wishes of the people as expressed in an election. We're the only country in the world that really has this problem. I had the opportunity to teach this fall in London, where there was just an election earlier this summer. And even though that election was quite contested and it took a little while for the three parties to figure out how to put together the coalition government, there was never a suggestion that the outgoing party should have the opportunity to keep enacting laws. You know, that's one time when I think we have a lot to learn from how other nations do things.

WERTHEIMER: Professor Nagle, thank you very much.

Prof. NAGLE: Thank you very much.

WERTHEIMER: John Copeland Nagle is a professor of law at the University of Notre Dame, and that's where we reached him.

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