As Congress crams an ambitious agenda into the current lame-duck session, the period between election and inauguration has come under renewed scrutiny. University of Notre Dame law professor John Copeland Nagle tells Big Think that these sessions are "fundamentally contrary to the idea of representative democracy. ... Once the people have elected their new representative there is no justification for allowing the previous representatives to still have the power to enact new laws."
For Nagle, the issue is representation and the role of elections: “Really every representative democracy in the world, once the election takes place the newly elected people take office much more quickly than in the United States,” he says. “Even if there is a bit of a delay time, there is certainly isn’t an opportunity for the outgoing government to do things that they want to do.”
Ambition (or opportunism, if you prefer) has been increasing the amount of legislation passed in lame-duck sessions, so much that they are becoming "a regular part of the political landscape," says Nagle. In the modern era, such sessions passed the WTO agreement in 1994, impeached President Clinton in 1998, and created the department of Homeland Security in 2002.
The strategy, says Nagle, has become to defer some of the more controversial issues from congressional consideration prior to an election. Rather than jeopardizing the seats of the majority party members (who might lose if they had to vote on particularly controversial legislation), the issue is left until November and December. "I think we have seen the culmination of that this year," says Nagle.
Nagle says we could get rid of these sessions by passing a Constitutional Amendment, by changing election dates, or by passing a law that limits the actions of such sessions to emergencies—such as declaring war. Or, Nagel says, a filibuster might be the answer. “In a strange, kind of ironic way the filibuster during a lame-duck sessions is, in fact, an instrument to effectuate the will of the people, because it’s blocking the laws that the repudiated Congress wants to pass.”
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