The Corner

What to Expect During Congress’s Lame Duck Session

Over at the Wall Street Journal’s Think Tank, John Feehery has a piece on the two schools of thought about Congress’s upcoming lame-duck session: the Optimistic one and the Pessimistic one. Here is how he describes them:

The Optimist School believes that Congress will work on a whole slew of must-pass legislation, including an omnibus appropriations bill, a host of tax extenders, terrorism risk insurance, perhaps some trade bills, and other cats and dogs.

The optimists are all about scoring last-minute touchdowns.

The Pessimist School believes that nothing will get done during the lame duck, with the possible exception of a continuing resolution that has some agreed-upon updated spending bills attached to it.

The pessimists are all about punting. Over and over again.

The optimists think that the new Republican Senate majority would want to get several things off the docket so it can start fresh in the president’s final two years in office.

The pessimists think that Senate Majority Leader Harry Reid would burn up most of the time in the lame duck pushing through nominations and judicial appointments, including the replacement for Attorney General Eric Holder.

I like the division, but I’d flip the labels. Who belongs to one school depends on whether one is in the future minority or the future majority. 

For instance, right now, Republicans and free-market types tend to be really worried that outgoing Democrats using the lame-duck to pass bills to reauthorize the Ex-Im Bank, to create an Internet sales tax, or to squeeze though subsidized terrorism insurance and a bunch of extensions to wasteful tax credits. Back in 2012, these same people saw the lame duck as an opportunity for action on things like the debt ceiling, the sequester, individual income-tax rates, and the estate-tax rate. 

So what should we actually expect in the lame-duck. action or inaction? And if there is action, will lawmakers use this time of poor oversight to go all out and vote differently than they would have during regular sessions of Congress? My colleagues Christopher KoopmanMatthew Mitchell, and Emily Washington have a new study that looks at the historical data help us estimate.

Some of their findings: The average member is three percentage points less likely to vote with their own party during the lame-duck session than during the normal legislative calendar. But the Senate minority party – most often Republicans — typically does not show a statistically significant change from regular sessions.

So basically, the risk of members voting with the other side or doing things that they wouldn’t do with more oversight is small. That being said, changes happen at the margins, and there are instances where that small difference matters and can have quite a large impact. Mitchell and Washington had a piece in Real Clear Politics recently where they gave the example of the Uruguay Round of the General Agreement on Trade and Tariffs vote in 1994. It had failed in the regular session but then passed in the lame duck — which happened to be a boon for consumer interests over protectionist special interests. They write:

The lame duck environment may make some legislators more likely to vote in the general interest rather than for special interests, making it a window of time in which policy reform is sometimes possible. For example, the Uruguay Round of the General Agreement on Trade and Tariffs passed in a lame duck in 1994, advancing free trade. During the regular session that year, GATT had been blocked in the Senate. During the lame duck session, however, Democratic Senators who were unwilling to vote for the bill during the regular session were under less pressure to support protectionist measures for domestic industries, allowing the bill to pass the Senate and become law.

Of course, while we may like this particular outcome, there is a risk that the same dynamic will lead to the adoption of something we really don’t like. 

They also find that the average member is more likely to miss votes altogether — by 50 percent in the House and 30 percent in the Senate — and that while some legislatures have been less likely to cater to special interests during a lame-duck session (the 1974 and 1994 Congresses, for example), others appear to have been more motivated by self-interest than by conscience (1922).

What does it mean for this upcoming lame-duck session? You can never know, but based on this data, I’m thinking that it may not be as bad as some of us fear it will be. For instance, if it is in fact the case that members tend to cater less to interest groups than they usually do, Ex-Im does seem less likely to come up. Besides, it seems that many people are expecting that very little will take place in the next few months. In other words, for now, I’m something of an optimist.

The lame-duck study with some great data and good charts is here.

Veronique de Rugy — Veronique de Rugy is a senior research fellow at the Mercatus Center at George Mason University.

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