- The Washington Times - Wednesday, July 26, 2006

If Dr. Seuss had written a book about the modern Congress he might have called it, “Old Duck, New Duck, Red Duck, Blue Duck.” Lawmakers appear as comfortable with lame-duck sessions these days as with an old bedtime story. But these post-election sessions — while easy, predictable reads, are also throwbacks to a previous era and an emblem of this new partisan age.

The House of Representatives leaves town this week, taking their political arguments and ideas back home to voters. The Senate will stay in session one week longer. When Congress returns in September, it has about 15 legislative days before the planned Sept. 29 adjournment, when members will pack up again for the November elections.

But putting on their best Schwarzenegger-esqe “I’ll be back,” routine, Congress plans to return later this year for another post-election lame-duck session — now a regular reprise after lawmakers tried to relegate this form of legislative fowl to the endangered species list in 1935. The regularity of lame-duck sessions serves as testament to how today’s closely divided partisan environment makes it difficult for Congress to complete its agenda without post-election remedial work.

According to the CongressionalResearch Service (CRS), before the 20th Amendment to the Constitution took effect in 1935 — stipulating that the terms of House and Senate members would begin on the third day of January — all House members were “lame ducks” in the second sessions of their terms.

That’s because congressional terms used to begin and end on March 4 of odd-numbered years, but the formal sessions did not commence until December. According to CRS: “Each Congress, after elected in an even-numbered year, would not first convene in session until December of the next [odd-numbered] year. It would then meet for its second regular session in December of the following [even-numbered] year, after the succeeding Congress had already been elected.” As a result, “the last session of every Congress was a separate lame duck session, typically lasting about four months.”

The 20th Amendment sought to eliminate, or at least filet, the excess use of these lame ducks, but despite Congress’ attempt to slay them, they remained regular features in a typical congressional term during the 1940s and early 1950s, before becoming more rare. In fact, after 1954, Congress only had four such sessions until 1994. However, since 1998, Congress has held lame-duck sessions at the end of every Congress (105th-108th). And the 109th Congress will continue the streak.

Why the resurgence of these legislative mallards? A number of factors come into play. But the Senate’s inability to process annual appropriations bills and other must-pass legislation in a timely manner is the major culprit. In recent years, the upper chamber’s rules protecting minority rights, linked with increased partisanship, have proved lethal to legislative efficiency.

Congress facing obstruction is not a new phenomenon. In their new book “Filibuster,”political scientists Gregory Wawro and Eric Schickler argue that congressional frustration with missing deadlines for finishing appropriations bills in the beginning of the 20th century was a major factor leading to the Senate adopting its first cloture rule in 1917. That change, along with some other institutional reforms, helped move the process along in a more efficient manner for a while in the early 1900s.

But Messrs. Wawro and Schickler contend obstruction has changed in the more modern era. The combination of increased demands on senators’ time — due to fundraising and other political obligations — and “costless” filibusters (the practice known as “two-tracking,” where a filibustered bill is set aside and the Senate considers other legislation, instead of keeping the lawmakers in session around the clock), has significantly affected the Senate’s ability to get its work done on time. As a result, this Congress, like the four before it, will finish its work in a lame-duck session later this year.

Threats of addressing obstruction through majority-rule votes on precedent changes, like Senate Majority Leader Bill Frist did earlier this year with respect to judicial nominations, is one way to rein in filibusters and get the legislative trains moving on time, according to Messrs. Wawro and Schickler. Yet such moves are also risky and filled with uncertainty.

As for this year, the duck is already in the oven. Whether it will be juicy or dry, short or long is still unclear. But history suggests when the pendulum swings toward obstruction and deadlines are consistently missed, the Senate responds. Maybe next year the majority party will seek ways to clip the wings of this legislative albatross.

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