Can A Lame-Duck Congress Save The Day?

By Scott Neuman

Published November 16, 2012 at 7:42 AM CST

The Capitol on Monday, as Congress prepared to return for its post-election lame duck session.

As the lame ducks waddle up to Capitol Hill for the final few weeks of this Congress, some political observers are hoping they will bring the "Spirit of 2010" with them.

Despite all the partisan bickering, the lame-duck session two years ago — bolstered by a bevy of outgoing Democrats with nothing to lose — actually got big things done, including the $850 billion stimulus and tax cut deal, a measure setting in motion the repeal of "don't ask, don't tell," passage of the defense authorization bill and an arms treaty.

But that was small change compared to what the lame-duck 112th Congress is being asked to do.

Can the legislative body that remains intact only for the next seven weeks prove cooperative enough to safely rappel the fiscal cliff? If not, a wave of tax increases and automatic spending cuts will begin to take effect in the new year.

Sarah Binder, a senior fellow at the Brookings Institution who specializes in Congress, says that, traditionally, lame-duck sessions have been reluctant to do big things. "But 2010 really makes you turn your head and realize that these are no less legitimate sessions."

Binder acknowledges, however, that 2010 "was somewhat of an anomaly." There have been a smattering of lame-duck sessions in modern history that have managed a can-do spirit, but many of them were either lackluster or simply failed to surmount the partisanship of the regular sessions.

Even an ambitious lame-duck Congress must do its work quickly. The session lasts from Election Day (by law the first Tuesday after the first Monday in November) to the start of the new Congress, which the Constitution sets as noon on Jan. 3 of the following year.

After the 1994 midterm elections, when Republicans took control of both chambers of Congress for the first time in 40 years, a sweeping General Agreement on Tariffs and Trade, or GATT treaty, which had been blocked in Congress, was pushed through in the still Democratic-controlled lame-duck session.

Four years later, House Republicans, who had just lost a handful of seats and were eyeing a diminished majority after the lame-duck session, used the time to impeach President Bill Clinton.

This 1915 cartoon highlights the biennial departure of "lame duck" members of Congress after losing re-election. This illustration is meant to depict defeated Democrats heading to the White House in hopes of securing political appointments from President Woodrow Wilson.

It's difficult to quantify what makes a lame-duck session more or less likely to be productive (and constructive), but Binder says it seems to have something to do with how many lame ducks there are and whether the House and/or Senate is going to change hands in January.

In 2010, for example, Democrats lost control of the House, so they had an incentive to push through legislation ahead of the next term.

"What matters is the number of lame ducks," explains Binder, who says in recent decades, high rates of re-election have kept the number to a minimum.

This time around, neither chamber has changed hands, but the Republican House majority narrowed slightly, and the Democratic Senate majority grew slightly. That could be an advantage, Binder says.

"You could make the case that this is essentially the same set of actors" as during the regular session, and as those who will make up the 113th Congress that takes over on Jan. 3, she says. "So, there is more democratic — little D — legitimacy to this lame duck than there is to a lot of lame ducks that came before."

Wendy Schiller, a professor of political science and public policy at Brown University in Rhode Island, agrees: "The Senate looks a bit different, there are a few more Democrats, and the Republicans lost a few seats in the House, but essentially these are the same people who will be together next year."

Even with fewer lame ducks, however, Schiller thinks the re-election of President Obama changes the dynamics a bit more than after an off-year election. She says that could be a formula for compromise.

"If you get the heaviest lifting done now, early on, particularly in terms of tax increases, particularly in terms of cuts to entitlement spending ... you have [at least two years] to explain it," Schiller says. "So, if you have to take this kind of vote, this is the best time to do it."

So, is there a chance for this lame-duck session to avert the threat of fiscal calamity?

"Absolutely. This was a pretty decisive election, and that makes a difference," says Linda Killian, a senior scholar at the Wilson Center.

"In 2010, the Republicans were taking the House. So, in that lame-duck session, it was not good for Democrats and there was pressure on President Obama to compromise, and he did on the Bush tax cuts," says Killian, author of The Swing Vote: The Untapped Power of Independents.

"In this session, things are only going to get better for the Democrats in the upcoming Congress, so there's no point for the Republicans to hold out. It isn't going to be better for them next year," she says.

Binder is circumspect.

"I suppose it's possible that we'll see something closer to a grand bargain [on tax increases and spending cuts to put a dent in the deficit], but I'm highly skeptical," she said Wednesday during a live chat on the fiscal cliff. "If there's no agreement that prevents going over the cliff (or down the slope ...), then all bets are off on the timing for a broader deal."