Q: What is a lame duck Congress?

A: The 20^th Amendment of the United States Constitution establishes the current rules for presidential and congressional terms. Passed in 1933, the Amendment pushed forward the date for the beginning of presidential terms, from March 4 to January 20 and established a new date for the beginning of congressional terms, moving it from the first Monday in December to January 3, unless otherwise scheduled by law. The “Lame Duck” session is therefore the period after the election, but before the new elected officials assume their offices. In the past, lame duck sessions more commonly were special session necessitated by circumstances such as economic crisis or war management, however in modern times they have become a sort of overtime for Congress to pass appropriations bills at the 11^th hour.

Q: How does the official transfer of power work for Congress?

A: Every member of the House of Representatives is elected for a two-year term and every senator for six-year terms. Each of these terms formally begins at noon on January 3, following an election, with the term lasting until noon on January 3 following an election. At any point, the outgoing Congress adjourns “sine die”, Latin for “without day”, thereby indefinitely suspending the proceedings of that Congress. There is no constitutionally prescribed date when Congress must adjourn prior to the new congress. Once the outgoing Congress is complete, the subsequently meets to elect a speaker and begin their term. The Senate, serving six year terms, elects roughly one third of its members in each “class”, with two senate classes having 33 members, and senate class three having one additional member because 100 cannot be evenly divided by 3. The new senators are sworn in by the presiding officer, the Vice President, and the new senators are seated to begin their session.

Q: How does the official transfer of power work for the Presidency?

A: The 20^th Amendment establishes that presidential terms begin at noon on January 20 following an election and end at noon on January 20 following an election after a four-year term. The 22^nd Amendment establishes that no one may be elected to the office of the President more than twice, or, in the case of a non-elected president serving more than two years of a presidential term, more than once. The current procedures for the transfer of power are established by the Electoral Count Reform and Presidential Transition Improvement Act of 2022, passed in response to the events of January 6, 2021. The Act establishes that the governor of each state, as well as the mayor of the District of Columbia, must submit certificates of ascertainment, in short certifying a slate of electors who are elected by the presidential election in each state. The electors are to be counted on January 6 in a joint session of Congress, where the incumbent Vice President serves as presiding officer in an explicitly ministerial role. If any senator or member wishes to object to a slate of electors, they must do so for one of two reasons: 1. The electors of a state were not lawfully certified or 2. An elector’s vote was not “regularly given.” Any objection must be submitted in writing and be cosigned by one fifth of the senators and one fifth of the members of the House of Representatives, currently 20 and 85 respectively. Once the election is certified, the winning candidates are inaugurated by an oath of office administered by the Chief Justice of the United States Supreme Court at noon on January 20.

Q: Are there any formal requirements that Congress continues to meet during the lame duck session?

A: No. Once the presiding official declares that Congress is suspended Sine Die, they are not required to meet again unless recalled. In practice, however, Congress often leaves things to the last minute, with various bills usually passed and signed by the president during this period.

Q: Can a Congress continue to pass laws even when its members have not been reelected?

A: Yes. Until the expiration of the Congressional term, members continue to have the full authority of their office.

Q: Do you have any recent examples of major legislation passed by a lame duck Congress?

A: Sure do! During the lame duck session of the 117^th Congress, both the National Defense Authorization Act of 2023 and the Consolidated Appropriations Act of 2023 were passed during the lame duck. During the 116^th Congress, the NDAA was passed by Congress, vetoed by President Trump, and the veto was overridden by the Congress, thus passing it into law. During the 115^th Congress, the most recent Farm Bill was passed into law.

Q: What might the 118^th Congress consider doing?

A: Currently, there are quite a number of things on their to do list. In no particular order, these include passing a budget, passing a Farm Bill, passing a disaster supplemental aid package, reauthorizing the national flood insurance program, and other high priority programs. Now more than usual, they have a lot on their plate.

Q: Does a lame-duck Congress allow for more politically risky votes?

A: Theoretically insulated from potential political ramifications, lame duck sessions have indeed held more “risky” votes, whether they be last gasp attempts for an outgoing party to pass their agenda or perceived less popular items receiving approval once fewer potential consequences are at stake, yes lame duck sessions do indeed invite risk.

Q: Does a lame duck usually result in issues being resolved?

A: It depends on the Congress and presidency. In 2018, President Donald Trump had requested $5 billion to fund a wall on the southern border, and Congress had been reluctant to take up the cause. President Trump and his allies attempted to tie the border wall to the federal budget, stating that any bill without funding for the wall would not be signed. In the lame duck session, attempts were made to reconcile opposing factions, but ultimately an agreement couldn’t be made, the government shut down, and the 115^th Congress went home with unfished business. The 116^th Congress, with a shift in partisan control ultimately took up the appropriations process where the previous congress had left off, funding the government after a 35-day shutdown, the longest in American history.

Q: Do individual members have to come back to congress if they lose reelection?

A: While it is still their job which they are paid to do, some previous members of Congress who have not been reelected have chosen to skip their lame duck sessions in favor of an early retirement.

Q: Are outgoing presidents required to take action on bills passed in the lame duck period?

A: When a bill is passed, the president has three options: sign the bill, veto the bill, or do nothing. If the bill is signed, it becomes law, if it is vetoed, the bill returns to Congress and subsequently the bill must receive two thirds approval to override the veto, if the president does nothing the bill is returned to Congress and becomes law after 10 days of inaction, except when Congress is unable to receive the returned bill. Functionally, the third option can only occur when Congress is out of session and is known as a “pocket veto.” The last president to pocket veto a bill was George W. Bush, who refused to sign the 2007 National Defense Authorization Act, and claimed that because Congress was out of session, this was permissible, despite Congress designating officers to receive the bill. Scholars debated the likelihood of this being upheld in court, but ultimately Congress did not challenge the president’s refusal to sign the bill. In the case of a lame duck, a president could technically pocket veto a bill once a Congress had adjourned Sine Die, but the political feasibility of such a move is debatable.

Q: Why is it called a Lame Duck session, anyway?

A: The term Lame Duck literally refers to a bird which is injured and therefore unable to keep up with its flock. Originally the term was used to describe British stockbrokers who had defaulted on their debts and were therefore unable to continue their work. The term has been used in the US to refer to politicians whose term was approaching its end since the late 1800’s.