Lame Duck Sessions Are Congress Without the Voters’ Judgment

There is a peculiar ritual in American politics that should trouble anyone who takes the Declaration of Independence seriously. Every two years, after the votes have been counted and the winners declared, the people's judgment is placed in a temporary holding pattern. The members of Congress who were just rejected at the polls, along with those who chose not to run again, fly back to Washington and continue writing laws for several more weeks. The original lame duck was an eighteenth-century London stockbroker who kept trading after he could no longer pay his debts. Congress has given that term a much more dangerous meaning.

The Consent Problem

The Declaration of Independence is not vague about where government gets its authority. It says governments are instituted among men "deriving their just powers from the consent of the governed." An election is the clearest concrete expression of that consent. A lame duck session is what happens after the people speak, and the people they just fired keep legislating as if they hadn't.

This is not a partisan complaint. Both parties have done it, and both parties will do it again. The problem is structural. It is a gap in the design of the American republic, and it cuts straight to the question of whether elections actually settle anything.

The Long History Behind the Lame Duck

Before the Twentieth Amendment, the gap was far worse. Voters went to the polls in early November, but the new Congress did not convene until March 4 of the following year. That left a defeated or retiring Congress in office for roughly four months, frequently holding a session after the people had already decided who should replace them. The Twentieth Amendment, ratified in 1933, moved the start of congressional terms to January 3 and the president's inauguration to January 20. That was real progress, but it did not eliminate the problem. It merely shrank it to about eight weeks.

Eight weeks is still plenty of time to do the things nobody wanted to do before an election.

In December 2022, a Congress that had just lost its House majority passed a $1.7 trillion omnibus spending bill that ran roughly 4,000 pages and was released only days before the vote. Many of the members voting on it would never face voters again. In 2010, a lame duck session passed a major tax deal and repealed "Don't Ask, Don't Tell." The names and the parties change, but the absence of accountability does not.

If those measures were defensible, they should have been brought before the voters. Instead, they were deliberately pushed into the one window when the people had no recourse.

The Incentive Problem Is the Real Problem

The deeper issue is incentives. People respond to them. James Madison understood this. In Federalist 57, he wrote that the House of Representatives was structured to keep in its members an "habitual recollection of their dependence on the people." In Federalist 52, he argued that frequent elections are the only reliable way to secure a representative's dependence on and sympathy with the people.

Madison was not being sentimental. He was describing incentives. A representative who knows he will face the people again has to weigh the long-run consequences of what he does. A lame duck does not. The member who just lost, or who announced retirement, no longer has to look a voter in the eye and defend a vote. The future no longer imposes costs.

That is why lame duck sessions produce spending, debt, regulation, and appointments that would have been politically impossible before the election. Whether the member understands it or not, he is acting without accountability. That is not a moral defect limited to one party. It is a design flaw.

Think of it as a corporate board that could approve its most controversial acquisitions after shareholders had voted the directors out but before the new board arrived. No shareholder would tolerate that arrangement. Yet Americans tolerate it every two years.

The Seen and the Unseen

Henry Hazlitt taught in Economics in One Lesson that a good economist looks beyond the visible effect of a policy to the unseen costs. The seen benefit of a lame duck session is that a bill passes or a nomination is confirmed. The unseen cost is that each session teaches future Congresses to wait.

Why take a hard vote in October when you can take it in December after the voters have already cast their ballots? Every time Congress uses the lame duck window to do politically dangerous work, it does not merely exercise power. It changes the incentives for the next Congress. The election becomes a pause, not a verdict.

That is the real cost. It is not just the spending or the last minute nominees. It is the lesson that the people's judgment can be deferred for a few weeks and then safely ignored. A republic cannot survive if its elections are treated as a scheduling inconvenience rather than a transfer of authority.

The Standard Defense Falls Short

The standard defense is always some version of the claim that government must keep operating. That is true. Government must keep operating. But that does not mean the people who just lost have to do the operating.

The newly elected Congress exists. Those members were chosen for this. Let them convene and govern. There is no mechanical reason in an age of instant communication why a new Congress cannot assemble within days of certification. The delay is a choice.

In most parliamentary systems, after an election a government may continue in a caretaker capacity for basic administration, but it does not pass major legislation. That is a sensible recognition that a government without a fresh mandate should not make lasting law. The United States has lost that common sense somewhere along the way.

The other objection writes itself. Congress often leaves hard choices until after elections precisely because hard choices are hard. A rule against lame duck lawmaking would force those choices earlier. That is the point.

What Serious Reform Would Look Like

A serious reform would start with a simple rule. After Election Day, neither chamber should consider non-emergency legislation, spending bills, or nominations unless a supermajority declares a genuine emergency. If it could not be passed before the people voted, it should not be passed after they voted until their new representatives are in the room.

Better still, Congress should shrink the window between the election and the swearing in so the lame duck is little more than a constitutional transition period, not a legislative free for all. The Twentieth Amendment was a half fix. In the twenty first century, it can be finished.

None of this requires overturning the separation of powers or rewriting the Bill of Rights. It requires Congress to adopt a self denying ordinance consistent with the spirit of the Constitution. That may be exactly why it has not happened yet. But the people can demand it, and they should.

Elections Must Settle Something

At bottom, the fight over lame duck sessions is not a scheduling debate. It is a fight over whether elections settle anything.

The entire architecture of a free republic assumes that when the people have spoken, the question is settled for a time. Lame duck sessions tell citizens their judgment matters, but not yet. That message has consequences. It teaches people that voting does not really decide. It teaches representatives that accountability can be dodged. It teaches everyone that the rules can be bent when the stakes are high enough.

In a republic, law rests on the consent of the governed. When the governed have just withdrawn their consent, continuing to legislate is not governance. It is trespassing.

If we are serious about self government, we should insist that the people we elected, not the ones we just fired, make the laws we have to live under.