Brushing Up on Lame-Duck Sessions

After a November midterm election, the outgoing Congress decides whether to keep working or opt out until the new Congress begins on January 3 of the upcoming year. Since the year 2000, every Congress has opted into a post-election session — also known as a “lame-duck” session.

A lame-duck session is when Congress convenes after an election but before the newly elected Congress members take office. As with a lame-duck president, a lame-duck Congress can use this time as a last chance to change or secure legislation. 

Of note

Midterm election (midterms): The election that occurs in the middle of a four-year presidential term on an even-numbered year. At midterm elections, every seat in the House of Representatives is up for election or reelection, because each representative serves a two-year term. Senators, on the other hand, serve six-year terms, so at each midterm election one-third of Senate seats are up for reelection or election.

Lame duck: This originally British term referred to bankrupt businessmen who symbolically resembled shot and wounded birds. It has since become a common term for outgoing presidents and members of Congress.

Sine die adjournment: Latin term meaning “without a day;” for this purpose, Congress is in recess until the new Congress begins the next session.

20th Amendment: Ratified in 1933, this amendment set the convening date for new Congresses as January 3 of every odd-numbered year. This created the two-month lame-duck period that follows a midterm election and remains today.

Pro forma: Latin for formal, these sessions are called only as a formality to continue the Congressional session throughout the election period. No real work is required. Instead, this is used as a strategy to prevent a president from using a pocket veto of a bill or a presidential veto of a law that is not subject to Congressional override. In short, if Congress is in session, its members can override a presidential veto.

“Extraordinary” sessions: A president can call a special lame-duck session of Congress after sine die adjournment but before the new Congress begins. 

Notable lame-duck sessions

1801 — 6th Congress: On its way out, this Federalist-majority Congress passed the Judiciary Act of 1801, reducing the number of Supreme Court justices from six to five, but otherwise substantially expanding the federal court system.

1954 — 83rd Congress: Congress censured Senator Joseph McCarthy during this lame-duck session for his abusive behavior and attacks against his colleagues in the Senate following his “anticommunist crusade” known as the Red Scare.

1974 — 93rd Congress: In the aftermath of Watergate and President Nixon’s resignation, Congress held a lame-duck session to work through the transition, including appointing Vice President Nelson D. Rockefeller and addressing many of President Gerald R. Ford’s requests.  

1998 — 105th Congress: In this session, Congress voted to impeach President Bill Clinton for committing and encouraging others to commit perjury about past sexual harassment investigations and recent inappropriate relationships with staffers. He was later acquitted by the Senate and remained in office.

2008 — 110th Congress: This Congress exemplified the use of pro forma during its lame-duck session, doing nothing other than continuing to meet the minimum number of times in order to remain in session and prevent President George W. Bush from making more recess appointments.

2010 — 111th Congress: The repeal of the “don’t ask, don’t tell” military policy marked this lame-duck session, allowing military members to remain in service even while openly gay.

2020 — 116th Congress: This Congress was known for passing 44% of its total laws during the lame-duck period, including significant legislation responding to coronavirus impacts. However, this Congress was also the least productive, overall, of any Congress in the 50 years prior.

Modern lame-duck sessions have been used to appropriate funds for programs or push through legislation, and they are not without critics or controversy. Some say out-voted or retiring Congressional members should not be permitted to continue to make laws. Nevertheless, it becomes especially important for concerned constituents to contact their Congress members when advocating for or against bills that may be fast-tracked during this two-month time period. 

This article was written by Sherilyn Stevenson, lead researcher and writer for Mormon Women for Ethical Government.